This report provides an overview of the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). ECPA consists of three parts. The first, often referred to as Title III, outlaws wiretapping and electronic eavesdropping, except as otherwise provided. The second, the Stored Communications Act, governs the privacy of, and government access to, the content of electronic communications and to related records. The third outlaws the use and installation of pen registers and of trap and trace devices, unless judicially approved for law enforcement or intelligence gathering purposes.
FISA consists of seven parts. The first, reminiscent of Title III, authorizes electronic surveillance in foreign intelligence investigations. The second authorizes physical searches in foreign intelligence cases. The third permits the use and installation of pen registers and trap and trace devices in the context of a foreign intelligence investigation. The fourth affords intelligence officials access to business records and other tangible items. The fifth directs the Attorney General to report to Congress on the specifics of the exercise of FISA authority. The sixth, scheduled to expire on December 31, 2017, permits the acquisition of the communications of targeted overseas individuals and entities. The seventh creates a safe harbor from civil liability for those who assist or have assisted in the collection of information relating to the activities of foreign powers and their agents.
This report includes the text of the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act, as well as appendixes listing the citations to state statutes that correspond to various aspects of ECPA. The report is available in an abridged form without footnotes, attributions to authority, the text of ECPA or FISA, or appendixes found here as CRS Report 98-327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by [author name scrubbed] and [author name scrubbed]. CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by [author name scrubbed], replicates portions of this report. Related CRS reports include CRS Report R42725, Reauthorization of the FISA Amendments Act, by [author name scrubbed], and CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by the same author.
This is an outline of two federal statutes: the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA).1 Both evolved out of the shadow of the Supreme Court's Fourth Amendment jurisprudence. The courts play an essential role in both. Congress crafted both to preserve the ability of government officials to secure information critical to the nation's well-being and to ensure individual privacy. It modeled parts of FISA after features in ECPA. There are differences, however. ECPA protects individual privacy from the intrusions of other individuals. FISA has no such concern. FISA authorizes the collection of information about the activities of foreign powers and their agents, whether those activities are criminal or not. ECPA's only concern is crime.
At common law, "eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior."2 Although early American law proscribed common law eavesdropping, the crime was little prosecuted and by the late nineteenth century had "nearly faded from the legal horizon."3 With the invention of the telegraph and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country.
Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I.4 Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927,5 but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead, however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.6
Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap evidence should have been suppressed as a violation of either his Fourth Amendment rights, his Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington state statute that outlawed wiretapping.
For a majority of the Court, writing through Chief Justice Taft, Olmstead's Fourth Amendment challenge was doomed by the absence of "an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage7 for the purposes of making a seizure."8
Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution did not.9 Congress did so in the 1934 Communications Act by expanding the Radio Act's proscription against intercepting and divulging radio communications so as to include intercepting and divulging radio or wire communications.10
The Federal Communications Act outlawed wiretapping, but it said nothing about the use of machines to surreptitiously record and transmit face to face conversations.11 In the absence of a statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds surged and the results began to erode Olmstead's underpinnings.12
Erosion, however, came slowly. Initially the Court applied Olmstead's principles to the electronic eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precepts because no physical trespass into the office in which the conversation took place had occurred.13 Similarly, the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public.14 On the other hand, the Fourth Amendment did reach the government's physical intrusion upon private property during an investigation, as for example when they drove a "spike mike" into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred.15
The spike mike case presented something of a technical problem, because there was some question whether the spike mike had actually crossed the property line of the defendant's town house when it made contact with the heating duct. The Court declined to rest its decision on the technicalities of local property law, and instead found that the government's conduct had intruded upon privacy of home and hearth in a manner condemned by the Fourth Amendment.16
Each of these cases focused upon whether a warrantless trespass onto private property had occurred, that is, whether the means of conducting a search and seizure had been so unreasonable as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had been not those tangible papers or effects for which the Fourth Amendment's protection had been traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth Amendment could hardly be ignored, for "[i]t follows from ... Silverman ... that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects."17
Soon thereafter the Court repudiated the notion that the Fourth Amendment's protection was contingent upon some trespass to real property in Katz v. United States.18 Katz was a bookie convicted on the basis of evidence gathered by an electronic listening and recording device set up outside the public telephone booth that Katz used to take and place bets. The Court held that the gateway for Fourth Amendment purposes stood at that point where an individual should to able to expect that his or her privacy would not be subjected to unwarranted governmental intrusion.19
One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of electronic eavesdropping is the usual attachment of the Amendment's warrant requirement. To avoid constitutional problems and at the same time preserve wiretapping and other forms of electronic eavesdropping as a law enforcement tool, some of the states established a statutory system under which law enforcement officials could obtain a warrant, or equivalent court order, authorizing wiretapping or electronic eavesdropping.
The Court rejected the constitutional adequacy of one of the more detailed of these state statutory schemes in Berger v. New York.20 The statute was found deficient because of its failure to require:
Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both activities in general terms but that also permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger.22
A decade later another Supreme Court case persuaded Congress to supplement Title III with a judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign intelligence gathering situations. When Congress passed Title III there was some question over the extent of the President's inherent powers to authorize wiretaps—without judicial approval—in national security cases. As a consequence, the issue was simply removed from the Title III scheme.23
After the Court held that the President's inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security,24 Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Security Act of 1978 (FISA).25 The FISA provides a procedure for judicial review and authorization of electronic surveillance and other forms of information gathering for foreign intelligence purposes.
Two other Supreme Court cases influenced the development of federal law in the area. In United States v. Miller,26 the Court held that a customer had no Fourth Amendment protected expectation of privacy in the records his bank created concerning his transactions with them. These third party records were therefore available to the government under a subpoena duces tecum rather than a more narrowly circumscribed warrant.27 In Smith v. Maryland,28 it held that no warrant was required for the state's use of a pen register or trap and trace device, if the device merely identified the telephone numbers for calls made and received from a particular telephone. No Fourth Amendment search or seizure occurred, the Court held, since the customer had no justifiable expectation of privacy in information which he knew or should have known the telephone company might ordinarily capture for billing or service purposes.29
In 1986, Congress enacted in the Electronic Communications Privacy Act (ECPA).30 ECPA consists of three parts: a revised Title III;31 the Stored Communications Act (SCA);32 and provisions governing the installation and use of pen registers as well as trap and trace devices.33 Congress has adjusted the components of ECPA and FISA, over the years. It has done so sometimes in the interests of greater privacy; sometimes in the interest of more effective law enforcement or foreign intelligence gathering; often with an eye to some combination of those interests. Prominent among its enactments are:
In Title III, ECPA begins the proposition that unless provided otherwise, it is a federal crime to engage in wiretapping or electronic eavesdropping; to possess wiretapping or electronic eavesdropping equipment; to use or disclosure of information obtained through illegal wiretapping or electronic eavesdropping; or to disclosure of information secured through court-ordered wiretapping or electronic eavesdropping, in order to obstruct justice.40
First among these is the ban on illegal wiretapping and electronic eavesdropping that covers:
The prohibition applies to "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation."42
Conduct can only violate Title III if it is done "intentionally," inadvertent conduct is no crime; the offender must have done on purpose those things which are outlawed.43 He need not be shown to have known, however, that his conduct was unlawful.44
Subsection 2511(1) contains two interception bars—one, 2511(1)(a), simply outlaws intentional interception; the other, 2511(1)(b), outlaws intentional interception when committed under any of five jurisdictional circumstances with either an implicit or explicit nexus to interstate or foreign commerce.45 Congress adopted the approach because of concern that its constitutional authority might not be sufficient to ban instances of electronic surveillance that bore no discernable connection to interstate commerce or any other of Congress's enumerated constitutional powers. So it enacted a general prohibition, and as a safety precaution, a second provision more tightly tethered to specific jurisdictional factors.46 The Justice Department has honored that caution by employing subparagraph (b) to prosecute the interception of oral communications, while using subparagraph (a) to prosecute other forms of electronic eavesdropping.47
Interception "means the aural or other acquisition of the contents" of various kinds of communications by means of "electronic, mechanical or other devices."48 Although logic might suggest that interception occurs only in the place where the communication is captured, the cases indicate that interception occurs as well where the communication begins, is transmitted, or is received.49 Yet, it does not include instances when an individual simply reads or listens to a previously intercepted communication, regardless of whether additional conduct may implicate the prohibitions on use or disclosure.50
Once limited to aural acquisitions, ECPA enlarged the definition of "interception" by adding the words "or other acquisition" so that it is no longer limited to interceptions of communications that can be heard.51 The change complicates the question of whether the wiretap, stored communications, or trap and trace portions of the ECPA govern the legality of various means of capturing information relating to a communication. The analysis might seem to favor wiretap coverage when it begins with an examination of whether an "interception" has occurred. Yet, there is little consensus over when an interception occurs; that is, whether "interception" as used in section 2511 contemplates surreptitious acquisition, either contemporaneous with transmission, or whether such acquisition may occur anytime before the initial cognitive receipt of the contents by the intended recipient, or under some other conditions.52
The USA PATRIOT Act resolved some of the statutory uncertainty concerning voice mail when it removed voice mail from the wiretap coverage of Title III (striking the phrase "and such term includes any electronic storage of such communication" from the definition of "wire communications" in Title III (18 U.S.C. 2510(1)) and added stored wire communications to the stored communications coverage of 18 U.S.C. 2703.53
The interceptions proscribed in Title III are confined to those that capture a communication's "content," that is, "information concerning [its] substance, purport, or meaning." 54 Trap and trace devices and pen registers once captured only information relating to the source and addressee of a communication, not its content. That is no longer the case. The "post-cut-through dialed digit features" of contemporary telephone communications now transmit communications in such a manner that the use of ordinary pen register or trap and trace devices will capture both non-content and content.55 As a consequence, a few courts have held, either as a matter of statutory construction or constitutional necessity, that the authorities must rely on a Title III wiretap order rather than a pen register/trap and trace order if such information will be captured.56
The statute does not cover common law "eavesdropping," but only interceptions "by electronic, mechanical or other device."57 The term includes computers,58 but it is defined so as not to include hearing aids or extension telephones in normal use (use in the "ordinary course of business").59 Whether an extension phone has been installed and is being used in the ordinary course of business or in the ordinary course of law enforcement duties, so that it no longer constitutes an interception device for purposes of Title III and comparable state laws has proven a somewhat vexing question.60
Although often intertwined with the consent exception discussed below, the question generally turns on the facts in a given case.61 When the exemption is claimed as a practice in the ordinary course of business, the interception must be for a legitimate business reason, it must be routinely conducted, and at least in some circuits employees must be notified that their conversations are being monitored.62 Similarly, "Congress most likely carved out an exception for law enforcement officials to make clear that the routine and almost universal recording of phone lines by police departments and prisons, as well as other law enforcement institutions, is exempt from the statute."63 The exception contemplates administrative rather than investigative monitoring,64 which must nevertheless be justified by a lawful, valid law enforcement concern.65
An interception is only a violation of Title III if the conversation or other form of captured communication is among those kinds which the statute protects, in oversimplified terms—if it is a telephone (wire), face to face (oral), or computer (electronic) communication. Thus, Title III does cover silent video surveillance.66
Title III does not cover all wire, oral or electronic communications. "Oral communications," by definition, includes only those face to face conversations for which the speakers have a justifiable expectation of privacy.67 "Wire communications" are limited to those that are at some point involve voice communications (i.e., only aural transfers).68 The term "electronic communications" encompasses radio and data transmissions generally, but excludes certain radio transmissions which can be innocently captured without great difficulty.69 Even when a radio transmission meets the definition, Title III's general exemption may render its capture innocent.70
Although the statute condemns attempted wiretapping and electronic eavesdropping ("endeavoring to intercept"),71 the provisions appear to have escaped use, interest, or comment heretofore, perhaps because the conduct most likely to constitute preparation for an interception—possession of wiretapping equipment—is already a separate crime.72
Consent interceptions are common, controversial and have a history all their own. The early bans on divulging telegraph or telephone messages had a consent exception.73 The Supreme Court upheld consent interceptions against Fourth Amendment challenge both before and after the enactment of Title III.74 The argument in favor of consent interceptions has always been essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position simply because a listener elects to record or transmit his statements rather than subsequently memorializing or repeating them.75 Wiretapping or electronic eavesdropping by either the police or anyone else with the consent of at least one party to the conversation is not unlawful under the federal statute.76 These provisions do no more than shield consent interceptions from the sanctions of federal law; they afford no protection from the sanctions of state law. Many of the states recognize comparable exceptions, but some only permit interception with the consent of all parties to a communication.77
Under federal law, consent may be either explicitly or implicitly given. For instance, someone, who uses a telephone other than his or her own and has been told by the subscriber that conversations over the instrument are recorded, has been held to have implicitly consented to interception when using the instrument.78 This is not to say that subscriber consent alone is sufficient, for it is the parties to the conversation whose privacy is protected.79 Although consent may be given in the hopes of leniency from law enforcement officials or as an election between unpalatable alternatives, it must be freely given and not secured coercively.80
Private consent interceptions may not be conducted for a criminal or tortious purpose.81 Some state wiretap laws do not recognize a one party consent exception. There, interception with the consent of but one party to the conversation is a violation of state law. But the federal exception is available as long as the purpose of the interception was neither criminal nor tortious—though the means may have been.82 At one time, the limitation encompassed interceptions for criminal, tortious, or otherwise injurious purposes, but ECPA dropped the reference to injurious purposes for fear that First Amendment values might be threatened should the clause be read to outlaw consent interceptions conducted to embarrass.83
Radio communications which can be inadvertently heard or are intended to be heard by the public are likewise exempt. These include not only commercial broadcasts, but ship and aircraft distress signals, tone-only pagers, marine radio and citizen band radio transmissions, and interceptions necessary to identify the source of any transmission, radio or otherwise, disrupting communications satellite broadcasts.84
Government officials have the benefit an exemption when executing a Title III eavesdropping order;85 acting in an emergency situation pending issuance of a court order;86 acting under the authority of Title III in the case of communications of an intruder in a communications system acting with the approval of the system provider;87 acting under the authority of the Foreign Intelligence Surveillance Act,88 or acting pursuant to the authority according them the use of pen registers and trap and trace devices.89
A further exemption applies to those who supply communications services: the telephone company, switchboard operators, and the like. The exemption permits interception in the name of improved service; to allow a service provider to itself against fraud;90 to assist federal and state officials operating under a judicially supervised interception order,91 and for the regulatory activities of the Federal Communications Commission.92
A few courts recognize a "vicarious consent" exception under which a custodial parent may secretly record the conversations of his or her minor child in the interest of protecting the child.93 Although rejected by most,94 a handful of federal courts have held that Title III does not preclude one spouse from wiretapping or electronically eavesdropping upon the other,95 a result other courts have sometimes reached through the telephone extension exception discussed above.96
Title III has three disclosure offenses. The first is a general prohibition focused on the products of an unlawful interception:
This is true of the wiretapper or electronic eavesdropper and of all those who, aware of the information's illicit origins, disclose it. The defendant must be shown to have known that the interception occurred and that the interception was unlawful.98 There are exceptions. When the illegally secured information relates to a matter of usual public concern, the First Amendment precludes a prosecution for disclosure under §2511(c).99 Moreover, the legislative history indicates that Congress did not intend to punish the disclosure of intercepted information that is public knowledge. Less clear is whether the limitation is confined to information commonly known at the time of capture, or more likely, information of which the public was generally aware at the time of disclosure.100 Finally, the results of electronic eavesdropping authorized under Title III may be disclosed and used for law enforcement purposes 101 and for testimonial purposes.102
Title III makes it a federal crime to disclose intercepted communications under two other circumstances. It is a federal crime to disclose, with an intent to obstruct criminal justice, any information derived from lawful police wiretapping or electronic eavesdropping, i.e.:
Offenders face the criminal and civil liability as those who wiretap.104
This second disclosure proscription applies to efforts to obstruct justice by revealing information gleaned from either federal wiretaps. It may also apply to state wiretaps. It covers information generated from a court-ordered wiretap authorized under Section 2516. Section 2516 authorizes both federal and state court-ordered wiretaps.105 On the other hand, strictly speaking, Section 2516 permits state wiretapping when "authorized" by state law.106 The courts might conclude that Congress would have spoken more clearly, if it intended to make it a federal crime to obstruct state criminal prosecutions by the disclosing of information derived from a state wiretap.
A third disclosure proscription applies only to electronic communications service providers "who intentionally divulge the contents of the communication while in transmission" to anyone other than sender and intended recipient.107 The prohibition comes with its own exemptions for divulgence—when one of the parties to the communications consents, when Title III authorizes disclosure of a court approved interception, when necessary for transmission of the communication, or when it involves inadvertent discovery of information relating to the commission of a crime.108 Although subsection 2511(3) provides no specific sanctions, violators would presumably be exposed to criminal liability under the general disclosure proscription, 18 U.S.C. 2511(1)(c), and to civil liability under 18 U.S.C. 2520.109
The prohibition on the use of information secured from illegal wiretapping or electronic eavesdropping mirrors its disclosure counterpart:
The available case law under the use prohibition of paragraph 2511(1)(d) is scant, and the section has rarely been invoked except in conjunction with the disclosure prohibition of paragraph 2511(1)(c).111 The wording of the two is clearly parallel, the legislative history describes them in the same breath,112 and they are treated alike for law enforcement purposes.113
A few courts had recognized an exception to the disclosure-use bans of subsection 2511(1) when law enforcement officials disclose or use the results of an illegal interception in which they had played no role.114
The criminal and civil liability that attend unlawful use of intercepted communications in violation of paragraph 2511(1)(d) are the same as for unlawful disclosure in violation of paragraphs 2511(1)(c) or 2511(1)(e), or for unlawful interception under paragraphs 2511(1)(a) or 2511(1)(b).115
The proscriptions for possession and trafficking in wiretapping and eavesdropping devices are even more demanding than those that apply to the predicate offense itself. There are exemptions for service providers,116 government officials and those under contract with the government,117 but there is no exemption for equipment designed to be used by private individuals, lawfully but surreptitiously.118 Nevertheless, inoperable equipment, though designed to intercept, may not be considered equipment "which can be used to intercept" and consequently may not serve as the basis for a conviction under §2512.119
Section 2512's three prohibitions feature several common elements, declaring that:
(a)
(b)
(c)
The legislative history lists among the items Congress considered "primarily useful for the purpose of the surreptitious interception of communications: the martini olive transmitter, the spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack."121
Questions once raised over whether §2512 covers equipment designed to permit unauthorized reception of scrambled satellite television signals have been resolved.122 Each of the circuits to consider the question has now concluded that §2512 outlaws such devices,123 but simple possession does not give rise to a private cause of action.124
The prohibitions in each of ECPA's three parts—chapter 119 (Title III), chapter 121 (Stored Communications Act), and chapter 206 (pen registers and trap & trace devices)—yield to the need for government access, usually under judicial supervision.
Title III exempts federal and state law enforcement officials from its prohibitions on the interception of wire, oral, and electronic communications under three circumstances: (1) pursuant to or in anticipation of a court order,125 (2) with the consent of one of the parties to the communication;126 and (3) with respect to the communications of an intruder within an electronic communications system.127
To secure a Title III interception order as part of a federal criminal investigation, a senior Justice Department official must approve the application for the court order authorizing the interception of wire or oral communications.128 The procedure is only available where there is probable cause to believe that the wiretap or electronic eavesdropping will produce evidence of one of a long, but not exhaustive, list of federal crimes,129 or of the whereabouts of a "fugitive from justice" fleeing from prosecution of one of the offenses on the predicate offense list.130 Any federal prosecutor may approve an application for a court order under Section 2518 authorizing the interception of email or other electronic communications and the authority extends to any federal felony rather than more limited list of federal felonies upon which a wiretap or bug must be predicated.131
At the state level, the principal prosecuting attorney of a state or any of its political subdivisions may approve an application for an order authorizing wiretapping or electronic eavesdropping based upon probable cause to believe that it will produce evidence of a felony under the state laws covering murder, kidnaping, gambling, robbery, bribery, extortion, drug trafficking, or any other crime dangerous to life, limb or property. State applications, court orders and other procedures must at a minimum be as demanding as federal requirements.132
Applications for a court order authorizing wiretapping and electronic surveillance include:
Before issuing an order authorizing interception, the court must find:
Subsections 2518(4) and (5) demand that any interception order include:
Compliance with these procedures may be postponed briefly until after the interception effort has begun, upon the approval of senior Justice Department officials in emergency cases involving organized crime or national security threatening conspiracies or involving the risk of death or serious injury.139
The court orders remain in effect only as long as required but not more than 30 days. After 30 days, the court may grant 30 day extensions subject to the procedures required for issuance of the original order.140 During that time the court may require progress reports at such intervals as it considers appropriate.141 Intercepted communications are to be recorded and the evidence secured and placed under seal (with the possibility of copies for authorized law enforcement disclosure and use) along with the application and the court's order.142
Within 90 days of the expiration of the order those whose communications have been intercepted are entitled to notice, and evidence secured through the intercept may be introduced into evidence with 10 days' advance notice to the parties.143
Title III also describes conditions under which information derived from a court ordered interception may be disclosed or otherwise used. It permits disclosure and use for official purposes by:
It also allows witnesses testifying in federal or state proceedings to reveal the results of a Title III tap,147 provided the intercepted conversation or other communication is not privileged.148
Without a Title III order and without offending Title III, authorities may intercept the wire, oral, or electronic communications, it they have the consent of one of the parties to the communication.149 As noted earlier, consent may be either explicitly or implicitly given. For instance, someone who uses a telephone other than his or her own and has been told by the subscriber that conversations over the instrument are recorded has been held to have implicitly consented to interception when using the instrument.150 This is not to say that subscriber consent alone is sufficient, for it is the parties to the conversation whose privacy is designed to be protected.151 Although consent may be given in the hopes of leniency from law enforcement officials or as an election between unpalatable alternatives, it must be freely given and not secured coercively.152
Little judicial or academic commentary accompanies the narrow "computer trespasser" justification for governmental interception of electronic communications in paragraph 2511(2)(i).153 The paragraph originated as a temporary provision in the USA PATRIOT Act,154 and seems designed to enable authorities to track intruders who would surreptitiously use the computer systems of others to cover their trail.155
Interception, use, or disclosure in violation of Title III is generally punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 for individuals and not more than $500,000 for organizations.156 The same penalties apply to the unlawful capture of cell phone and cordless phone conversations, since the Homeland Security Act157 repealed the reduced penalty provisions that at one time applied to the unlawful interceptions using radio scanners and the like.158 There is a reduced penalty, however, for filching satellite communications as long as the interception is not conducted for criminal, tortious, nor mercenary purposes: unauthorized interceptions are broadly proscribed subject to an exception for unscrambled transmissions159 and are subject to the general five-year penalty, but interceptions for neither criminal, tortious, nor mercenary purposes subject offenders to only civil punishment.160 Equipment used to wiretap or eavesdrop in violation of Title III is subject to confiscation by the United States, either in a separate civil proceeding or a part of the prosecution of the offender.161
In addition to exemptions previously mentioned, Title III provides a defense to criminal liability based on good faith.162
Victims of a violation of Title III may be entitled to equitable relief, damages (equal to the greater of actual damages, $100 per day of violation, or $10,000),163 punitive damages, reasonable attorney's fees and reasonable litigation costs.164 A majority of federal courts hold that a court may decline to award damages, attorneys' fees and costs, but a few still consider such awards mandatory.165 In addition, a majority hold that governmental entities other than the United States may be liable for violations of Section 2520166 and that law enforcement officers enjoy a qualified immunity from suit under Section 2520.167
The cause of action created in Section 2520 is subject to a good faith defense.168 Efforts to claim the defense by anyone other than government officials or someone working at their direction have been largely unsuccessful.169 Moreover, as addressed more extensively below, the 2008 Foreign Intelligence Surveillance Amendments Act, under some circumstances, bars any state or federal cause of action against anyone who assists the government with the installation or use of a means of electronic eavesdropping or electronic surveillance.170
The USA PATRIOT Act authorizes a cause of action against the United States for willful violations of Title III, the Foreign Intelligence Surveillance Act or the provisions governing stored communications in 18 U.S.C. 2701-2712.171 Successful plaintiffs are entitled to the greater of $10,000 or actual damages, and reasonable litigation costs.172
Upon a judicial or administrative finding of a Title III violation suggesting possible intentional or willful misconduct on the part of a federal officer or employee, the federal agency or department involved may institute disciplinary action. It is required to explain to its Inspector General's office if it declines to do so.173
At one time, the American Bar Association (ABA) considered it ethical misconduct for an attorney to intercept or record a conversation without the consent of all of the parties to the conversation, ABA Formal Op. 337 (1974). The reaction of state regulatory authorities with the power to discipline professional misconduct was mixed. Some agreed with the ABA.174 Some agreed with the ABA, but expanded the circumstances under which recording could be conducted within ethical bounds.175 Some disagreed with the ABA view.176 The ABA has since repudiated its earlier position, ABA Formal Op. 01-422 (2001). Attorneys who engage in unlawful wiretapping or electronic eavesdropping will remain subject to professional discipline in every jurisdiction.177 In light of the ABA's change of position, courts and bar associations have had varied reactions to lawful wiretapping or electronic eavesdropping by members of the bar.178
When the federal wiretap statute prohibits disclosure, the information is inadmissible as evidence before any federal, state, or local tribunal or authority.179 Individuals whose conversations have been intercepted or against whom the interception was directed180 have standing to claim the benefits of the Section 2515 exclusionary rule through a motion to suppress under 18 U.S.C. 2518(10)(a). Paragraph 2518(10)(a) bars admission as long as the evidence is the product of (1) an unlawful interception, (2) an interception authorized by a facially insufficient court order, or (3) an interception executed in manner substantially contrary to the order authorizing the interception. Mere technical noncompliance is not enough; the defect must be of a nature that substantially undermines the regime of court-supervised interception for law enforcement purposes.181
Although the Supreme Court has held that Section 2515 may require suppression in instances where the Fourth Amendment exclusionary rule would not,182 some of the lower courts have recognized the applicability of the good faith exception to the Fourth Amendment exclusionary rule in Section 2515 cases.183 Other courts have held, moreover, that the fruits of an unlawful wiretapping or electronic eavesdropping may be used for impeachment purposes.184
The admissibility of tapes or transcripts of tapes of intercepted conversations raise a number of questions quite apart from the legality of the interception. As a consequence of the prerequisites required for admission, privately recorded conversations are more likely to be found inadmissible than those recorded by government officials. Admissibility will require the party moving for admission to show that the tapes or transcripts are accurate, authentic and trustworthy.185 For some courts this demands a showing that, "(1) the recording device was capable of recording the events offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions, or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement."186
In its original form Title III was ill-suited to ensure the privacy of those varieties of modern communications which are equally vulnerable to intrusion when they are at rest as when they are in transmission. Surreptitious "access" is as least as great a threat as surreptitious "interception" to the patrons of electronic mail (email), electronic bulletin boards, voice mail, pagers, and remote computer storage.
Accordingly, ECPA, in the Stored Communications Act (SCA), bans surreptitious access to communications at rest, although it does so beyond the confines that apply to interception, 18 U.S.C. 2701-2711. These separate provisions afford protection for email, voice mail, and other electronic communications only somewhat akin to that available for telephone and face to face conversations under 18 U.S.C. 2510-2522. The SCA has two sets of proscriptions: a general prohibition and a second applicable to only certain communications providers. The general proscription makes it a federal crime to:
The prohibition extends only to "intentional" violations, that is, violations where the defendant had as a conscious objective the forbidden conduct and proscribed result.188 The offense has three essential components: access, to a facility through which service is supplied, and consequences (obtain, alter, prevent access to a wire or electronic communication). The first requires either unauthorized access or access in excess of authorization. The third requires either acquisition or alteration of an electronic communication or denial of access to it. The courts have encountered little difficulty in determining whether a defendant's conduct constitutes obtaining, altering, or preventing access to a communication. They have divided, however, over cases in which the defendant was granted access to a communication but used access for the purposes other than that for which it was authorized.189 The question is less divisive when the grant of access is expressly limited190 or when an individual with authorized access provides an outsider with his user name and password.191
The "facility through which an electronic communication service is provided" need not be one made available to the public; but includes as well facilities through which a private employer provides electronic communication services to his employees.192
The section only protects communications while "in electronic storage" in a facility through which electronic communications service is provided. "Electronic storage" is defined to encompass temporary, intermediate storage incidental to transmission as well as backup storage.193 The definition is not always easily applied.194
Section 2701's prohibitions yield to several exceptions and defenses. First, the section itself declares that:
Subsection (a) of this section does not apply with respect to conduct authorized—
(1) by the person or entity providing a wire or electronic communications service;
(2) by a user of that service with respect to a communication of or intended for that user; or
(3) in section 2703 [requirements for government access],
2704 [backup preservation] or
2518 [court ordered wiretapping or electronic eavesdropping] of this title.195
Second, there are the good faith defenses provided by section 2707:
A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) of this title) [relating to an official request for a service provider preserve evidence];
(2) a request of an investigative or law enforcement officer under section 2518(7) of this title [relating to emergency wiretapping and electronic eavesdropping]; or
(3) a good faith determination that section 2511(3) of this title [relating to the circumstances under which an electronic communications provider may divulge the contents of communication]196 permitted the conduct complained of
is a complete defense to any civil or criminal action brought under this chapter or any other law. 18 U.S.C. 2707(e).
Third, there is the general immunity from civil liability afforded providers under subsection 2703(e):
[N]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.
A second set of prohibitions appears in Section 2702 and supplements those in Section 2701. Section 2702 bans the disclosure of the content of electronic communications and records relating to them by those who provide the public with electronic communication service or remote computing service. The section forbids providers to disclose the content of certain communications to anyone197 or to disclose related records to governmental entities.198
Public electronic communication service (ECS) providers to the public must keep confidential the content of any "communication while in electronic storage by that service."199 Public remote computer service (RCS) providers must keep confidential the content of "any communication which is carried or maintained on that service—(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; (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."200
Both sets of providers must keep confidential any "record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any government entity."201
Section 2702 comes with its own set of exceptions which permit disclosure of the contents of a communication:
(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517 [relating to disclosures permitted under Title III], 2511(2)(a)[relating to provider disclosures permitted under Title III for protection of provider property or incidental to service], or 2703 [relating to required provider disclosures pursuant to governmental authority] of this title;
(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;
(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990;
(7) to a law enforcement agency—(A) if the contents—(i) were inadvertently obtained by the service provider; and (ii) appear to pertain to the commission of a crime;
(8) to a Federal, State, or local government entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.202
The record disclosure exceptions are similar.203
The Ninth Circuit in Quon noted that the exception in paragraph 2702(b)(3)(disclosure "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) permits RCS providers to disclose the contents of otherwise protected communications does not afford ECS providers the same exception.204 Thus, the service provider violated the SCA when it supplied the Ontario Police Department (the subscriber) with the text of Sergeant Quon's pager messages.205
The circumstances and procedural requirements for law enforcement access to stored wire or electronic communications and transactional records are less demanding than those under Title III.206 They deal with two kinds of information—often in the custody of the communications service provider rather than of any of the parties to the communication—communications records and the content of electronic or wire communications. The Stored Communications Act provides two primary avenues for law enforcement access: permissible provider disclosure (Section 2702) and required provided access (Section 2703).207 As noted earlier in the general discussion of Section 2702, a public electronic communication service (ECS) provider or a public remote computing service (RCS) provider may disclose the content of a customer's communication without the consent of a communicating party to a law enforcement agency in the case of inadvertent discovery of information relating to commission of a crime,208 or to any government entity in an emergency situation.209 ECS and RCS providers may also disclose communications records to any governmental entity in an emergency situation.210 Federal, state, and local agencies, regardless of the nature of their missions, all qualify as governmental entities for purposes of Section 2702.211
Section 2702 authorizes voluntary disclosure. Section 2703 speaks to the circumstances under which ECS and RCS providers may be required to disclose communications content and related records. Section 2703 distinguishes between recent communications and those that have been in electronic storage for more than 180 days.212 The section insists that government entities resort to a search warrant to compel providers to supply the content of wire or electronic communications held in electronic storage for less than 180 days.213 It permits them to use a warrant, subpoena, or a court order authorized in subsection 2703(d) to force content disclosure with respect to communications held for more than 180 days.214
A subsection 2703(d) court order may be issued by a federal magistrate or by a judge qualified to issue an order under Title III.215 It need not be issued in the district in which the provider is located.216
The person whose communication is disclosed is entitled to notice, unless the court authorizes delayed notification because contemporaneous notice might have an adverse impact.217 Government supervisory officials may certify the need for delayed notification in the case of a subpoena.218 Traditional exigent circumstances and a final general inconvenience justification form the grounds for delayed notification in either case:
Subsection 2703(d) authorizes issuance of an order when the governmental entity has presented specific and articulable facts sufficient to establish reasonable grounds to believe that the contents are relevant and material to an ongoing criminal investigation.220 Some courts have held that this "reasonable grounds" standard is a Terry standard, a less demanding standard than "probable cause," and that under some circumstances this standard may be constitutionally insufficient to justify government access to provider held email.221 A Sixth Circuit panel has held that the Fourth Amendment precludes government access to the content of stored communications (email) held by service providers in the absence of a warrant, subscriber consent, or some other indication that the subscriber has waived his or her expectation of privacy.222 Where the government instead secures access through a subpoena or court order as Section 2703 permits, the evidence may be subject to both the Fourth Amendment exclusionary rule and the exceptions to the rule.223
The SCA has two provisions which require providers to save customer communications at the government's request. One is found in subsection 2703(f). It requires ECS and RCS providers to preserve "records and other evidence in its possession," at the request of a governmental entity pending receipt of a warrant, court order, or subpoena.224 Whether providers are bound to preserve emails and other communications that come into their possession both before and after receipt of the request is unclear.225
The second preservation provision is more detailed. It permits a governmental entity to insist that providers preserve backup copies of the communications covered by a subpoena or subsection 2703(d) court order. It gives subscribers the right to challenge the relevancy of the information sought.226 It might also be read to require the preservation of the content of communications received by the provider both before and after receipt of the order, but the requirement that copies be made within two days of receipt of the order seems to preclude such an interpretation.227
Section 2703 provides greater protection to communication content than to provider records relating to those communications. Under subsection 2703(c), a governmental entity may require a ECS or RCS provider to disclose records or information pertaining to a customer or subscriber—other than the content of a communication—under a warrant, a court order under subsection 2703(d), or with the consent of the subject of the information.228 An administrative, grand jury or trial subpoena is sufficient, however, for a limited range of customer or subscriber related information.229 The customer or subscriber need not be notified of the record disclosure in either case.230
The district courts have been divided for some time over the question of what standard applies when the government seeks cell phone location information from a provider, either current or historical.231 The Third Circuit has held that while issuance of an order under subsection 2703(d) does not require a showing of probable cause as a general rule, the circumstances of a given case may require it.232
In United States v. Jones,233 five members of the Supreme Court seemed to suggest that a driver has a reasonable expectation that authorities must comply with the demands of the Fourth Amendment before acquiring access to information that discloses the travel patterns of his car over an extended period of time. There, the Court unanimously agreed that the agents' attachment of a tracking device to Jones' car and long-term capture of the resulting information constituted a Fourth Amendment search.234 For four Justices, placement of the device constituted a physical intrusion upon a constitutionally protected area.235 For four others, long-term tracking constituted a breach of Jones' reasonable expectation of privacy.236 For the ninth Justice, the activity constituted a Fourth Amendment search under either rationale.237 It remains to be seen whether the Supreme Court's decision in Jones will contribute to resolution of the issue.238
Breaches of the unauthorized access prohibitions of Section 2701 expose offenders to possible criminal, civil, and administrative sanctions. Violations committed for malicious, mercenary, tortious or criminal purposes are punishable by imprisonment for not more than five years (not more than 10 years for a subsequent conviction) and/or a fine of not more than $250,000 (not more than $500,000 for organizations); lesser transgressions, by imprisonment for not more than one year (not more than five years for a subsequent conviction) and/or a fine of not more than $100,000.239 Victims of a violation of subsection 2701(a) have a cause of action for equitable relief, reasonable attorneys' fees and costs, and damages equal to the amount of any offender profits added to the total of the victim's losses (but not less than $1,000 in any event).240
Violations by the United States may give rise to a cause of action and may result in disciplinary action against offending officials or employees under the same provisions that apply to U.S. violations of Title III,241 Unlike violations of Title III, however, there is no statutory prohibition on disclosure or use of the information through a violation of Section 2701;242 nor is there a statutory rule for the exclusion of evidence as a consequence of a violation.243 Yet, violations of SCA, which also constitute violations of the Fourth Amendment, will trigger both the Fourth Amendment exclusionary rule and the exceptions to that rule.244
No criminal penalties attend a violation of voluntary provider disclosure prohibitions of Section 2702. Yet, ECS and RCS providers—unable to claim the benefit of one of the section's exceptions, of the good faith defense under subsection 2707(e), or of the immunity available under subsection 2703(e)—may be liable for civil damages, costs and attorneys' fees under Section 2707 for any violation of Section 2702.245
A trap and trace device identifies the source of incoming calls, and a pen register indicates the numbers called from a particular instrument.246 Since they did not allowed the user to overhear the "contents" of the phone conversation or to otherwise capture the content of a communication, they were not considered interceptions within the reach of Title III prior to the enactment of ECPA.247 Although Congress elected to expand the definition of interception, it chose to regulate these devices beyond the boundaries of Title III for most purposes.248 Nevertheless, the Title III wiretap provisions apply when, due to the nature of advances in telecommunications technology, pen registers and trap and trace devices are able to capture wire communication "content."249
The USA PATRIOT Act enlarged the coverage of Sections 3121-3127 to include sender/addressee information relating to email and other forms of electronic communications.250
Subsection 3121(a) outlaws installation or use of a pen register or trap and trace device, except under one of seven circumstances:
Federal government attorneys and state and local police officers may apply for a court order authorizing the installation and use of a pen register and/or a trap and trace device upon certification that the information that it will provide is relevant to a pending criminal investigation.254
An order authorizing installation and use of a pen register or trap and trace device must:
The order may be issued by a judge of "competent jurisdiction" over the offense under investigation, including a federal magistrate judge.256 Senior Justice Department or state prosecutors may approve the installation and use of a pen register or trap and trace device prior to the issuance of court authorization in emergency cases that involve either an organized crime conspiracy, an immediate danger of death or serious injury, a threat to national security, or a serious attack on a "protected computer."257 Emergency use must end within 48 hours, or sooner if an application for court approval is denied.258
Federal authorities have applied for court orders, under the Stored Communications Act (18 U.S.C. 2701-2712) and the trap and trace authority of 18 U.S.C. 3121-3127, seeking to direct communications providers to supply them with the information necessary to track cell phone users in conjunction with an ongoing criminal investigation. Thus far, their efforts have met with mixed success.259
The use or installation of pen registers or trap and trace devices by anyone other than the telephone company, service provider, or those acting under judicial authority is a federal crime, punishable by imprisonment for not more than a year and/or a fine of not more than $100,000 ($200,000 for an organization).260 Subsection 3124(e) creates a good faith defense for reliance upon a court order under subsection 3123(b), an emergency request under subsection 3125(a), "a legislative authorization, or a statutory authorization."261 There is no accompanying exclusionary rule, and consequently a violation of Section 3121 will not serve as a basis to suppress any resulting evidence.262
Moreover, unlike violations of Title III, there is no requirement that the target of an order be notified upon the expiration of the order; nor is there a separate federal private cause of action for victims of a pen register or trap and trace device violation.263 One court, in order the avoid First Amendment concerns, has held that the statute precludes imposing permanent gag orders upon providers.264 Nevertheless permitting providers to disclose the existence of an order to a target does not require them to do so. Some of the states have established a separate criminal offense for unlawful use of a pen register or trap and trace device,265 yet most of these seem to follow the federal lead and have not established a separate private cause of action for unlawful installation or use of the devices.266
The Foreign Intelligence Surveillance Act (FISA) authorizes special court orders for several purposes: electronic surveillance, physical searches, installation and use of pen registers/trap and trace devices, and orders to disclose tangible items.267 It once authorized surveillance orders which targeted the communications of persons overseas.268 Its replacement provisions for the review of orders directed at persons abroad expire on December 31, 2017.269 FISA insists that Congress be informed as to the extent that its authority has been used 270 and establishes a safe harbor for those who help carry out its orders.271
The Foreign Intelligence Surveillance Court (the FISA court) is a creature of FISA.272 The FISA court consists of eleven federal district court judges from throughout the country, designated by the Chief Justice of the United States.273 The individual members of the court receive and act upon FISA order applications.274 Federal magistrate judges, designated by the Chief Justice, may also perform those functions with respect to pen register/trap and trace orders.275
Members of the FISA court, sitting in panels, pass upon challenges associated with the execution of tangible item and overseas targeting orders.276 These panels also rule upon requests to modify or set aside gag orders issued in connection with the execution of tangible item orders.277 The government may appeal the denial of a FISA application to a Foreign Intelligence Surveillance Court of Review made up of three federal judges designated by the Chief Justice.278
The FISA electronic surveillance and physical search components use generally parallel procedures. Both draw from their law enforcement counterparts, but with important differences. The procedure for securing wiretapping court orders under FISA differs from its law enforcement equivalent in several ways. First is the matter of what constitutes electronic surveillance. FISA classifies four kinds of "electronic surveillance." The four classes of electronic surveillance include wiretapping that could otherwise only be conducted under court order:
"(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
"(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(I) of title 18, United States Code;
"(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
"(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes," 50 U.S.C. 1801(f).
In the area of surveillance and physical searches,279 the judges of the FISA court individually receive and approve or reject requests,280 authorized by the Attorney General, to conduct the four specific types of electronic surveillance noted earlier 281 of the communications and activities of foreign powers.282
A FISA electronic surveillance or physical search application must include:
The judges issue orders approving electronic surveillance or physical searches upon a finding that the application requirements have been met and that there is probable cause to believe that the target is a foreign power or the agent of a foreign power and that the targeted places or facilities are used by foreign powers or their agents.288
Orders approving electronic surveillance must:
As in the case of law enforcement wiretapping and electronic eavesdropping, there is authority for interception and physical searches prior to approval in emergency situations.292 However, there is also statutory authority for foreign intelligence surveillance interceptions and physical searches without the requirement of a court order when the targets are limited to communications among or between foreign powers or involve nonverbal communications from places under the open and exclusive control of a foreign power.293 The second of these is replete with reporting requirements to Congress and the FISA court.294 These and the twin war time exceptions295 may be subject to constitutional limitations, particularly when Americans are the surveillance targets.296
FISA has detailed provisions governing the use of the information acquired through the use of its surveillance or physical search authority that include:
Both the surveillance and the physical search authorities are subject to Congressional oversight in the form of semiannual reports on the extent and circumstances of their use.304
Title III has long declared that it should not be construed to confine governmental activities authorized under FISA, but that the two—Title III and FISA—are the exclusive authority under which governmental electronic surveillance may be conducted in this country.305 The Justice Department suggested, however, that in addition to the President's constitutional authority the Authorization for the Use of Military Force Resolution,306 enacted in response to the events of September 11, established an implicit exception to the exclusivity requirement.307 Section 102 of 2008 FISA Amendments Act seeks to overcome the suggestion by establishing a second exclusivity section which declares that exceptions may only be created by explicit statutory language.308
It is a federal crime for federal officials to abuse their authority under either the FISA electronic surveillance or physical search provisions. The prohibitions cover illicit surveillance and searches as well as the use or disclosure of such unlawful activities. They apply to any federal officer or employee who:
• intentionally, either
• engages in electronic surveillance or conducts a physical search
• under color of law
• except as authorized by statute, or
• discloses or uses
• information obtained under color of law
• by electronic surveillance or physical search,
• knowing or having reason to know
• that the information was obtained by electronic surveillance not authorized by statute.309
Violations are punishable by a fine and/or imprisonment for not more than 5 years.310 Federal law enforcement and investigative officers enjoy the benefit of a defense, if they are acting under the authority of warrant or court order.311
Violations may also expose the offender to civil liability.312 Those directed to assist authorities in execution of an electronic surveillance or physical search order are immune from civil suit.313 Moreover, even in the absence of a court order, the 2008 FISA Amendments Act bars the initiation or continuation of civil suits in either state or federal court based on charges that the defendant assisted any of the U.S. intelligence agencies.314 Dismissal is required upon the certification of the Attorney General that the person either:
Only telecommunications carriers, electronic service providers, and other communication service providers may claim the protection afforded those who assisted activities authorized between 9/11 and January 17, 2007.316 The group which may claim protection for assistance supplied under other grounds is larger. It includes not only communication service providers but also any "landlord, custodian or other person" ordered or directed to provide assistance.317
The Attorney General's certification is binding if supported by substantial evidence, and the court is to consider challenges and supporting evidence ex parte and in camera where the Attorney General asserts that disclosure would harm national security.318 Cases filed in state court may be removed to federal court.319
The courts have rejected arguments that immunity procedure violates the Due Process Clause, the First Amendment, separation of powers, and the Administrative Procedure Act in multi-district civil litigation arising out of the National Security Agency program.320
The 2008 FISA Amendments Act also preempts state regulatory authority over communication service providers with respect to assistance provided to intelligence agencies.321 In addition, it directs the Attorney General to report to the Judiciary and Intelligence Committees on implementation of the protective provisions.322
With the reduced availability of individual defendants, the USA PATRIOT Act amendments afford victims of any improper use of information secured under a FISA surveillance, physical search, or pen register order a cause of action against the United States for actual or statutory damages.323 No comparable cause of action against the United States exists for other FISA violations.324
FISA also has its own exclusionary rules for evidence derived from unlawful FISA electronic surveillance or physical searches.325 Nevertheless, Congress anticipated,326 and the courts have acknowledged, that lawful surveillance and searches conducted under FISA for foreign intelligence purposes may result in admissible evidence of a crime.327 The FISA exclusionary rules, however, do not apply before the grand jury.328
FISA pen register and trap and trace procedures are similar to those of their law enforcement counterparts, but with many of the attributes of other FISA provisions.329 The orders may be issued either by a member of the FISA court or by a FISA magistrate upon the certification of a federal officer that the information sought is likely to be relevant to an investigation of international terrorism or clandestine intelligence activities.330 The order may direct service providers to supply customer information related to the order.331 The statute allows the Attorney General to authorize emergency installation and use as long as an application is filed within 48 hours,332 and restricts the use of any resulting evidence if an order is not subsequently granted.333 The provisions for use of the information acquired run parallel to those that apply to FISA surveillance and physical search orders.334 The USA PATRIOT Improvement and Reauthorization Act increased the level of Congressional oversight by requiring that the semiannual report on the government's recourse to FISA pen register/trap and trace authority including statistical information on the extent of its use.335
The pen register/trap & trace portion of FISA declares that information acquired by virtue of a FISA pen register or trap & trade order may only be used and disclosed for lawful purposes and only consistent with FISA's use restrictions.336 It is a federal crime to install or use a pen register or trap and trace device unless authorized to do so under either ECPA or FISA.337 Offenders face the prospect of imprisonment for not more than 1 year and/or a fine of not more than $100,000.338 Good faith reliance on a statutory authorization, such as the authority FISA provides, constitutes a defense.339 Those who assist are immune from civil liability, 340 but victims of the unlawful use of information derived from a FISA pen register or trap and trace device order have a cause of action against the United States.341 The exclusionary rule for a FISA pen register or trap and trace order is comparable to that which applies in the case of evidence derived from FISA electronic surveillance or a FISA physical search.342
FISA's tangible item orders are perhaps its most interesting feature.343 Prior to the USA PATRIOT Act, senior FBI officials could approve an application to the FISA court for an order authorizing common carriers, or public accommodation, storage facility, or vehicle rental establishments to release their business records based upon certification of a reason to believe that the records pertained to a foreign power or the agent of a foreign power.344 The USA PATRIOT Act and later the USA PATRIOT Improvement and Reauthorization Act temporarily rewrote the procedure. In its temporary form, it requires rather than authorizes access; it is predicated upon relevancy rather than probable cause; it applies to all tangible property (not merely business records); and it applies to the tangible property of both individuals or organizations, commercial and otherwise.345 It is limited, however, to investigations conducted to secure foreign intelligence information or to protect against international terrorism or clandestine intelligence activities.346
Recipients are prohibited from disclosing the existence of the order, but are expressly authorized to consult an attorney with respect to their rights and obligations under the order.347 They enjoy immunity from civil liability for good faith compliance.348 They may challenge the legality of the order and/or ask that its disclosure restrictions be lifted or modified.349 The grounds for lifting the secrecy requirements are closely defined, but petitions for reconsideration may be filed annually.350 The decision to set aside, modify or let stand either the disclosure restrictions of an order or the underlying order itself are subject to appellate review.351
As additional safeguards, Congress has:
The 2008 FISA Amendments Act established a temporary set of three procedures which authorize the acquisition of foreign intelligence information by targeting an individual or entity thought to be overseas.357 One, 50 U.S.C. 1881a, applies to the targeting of an overseas person or entity that is not a U.S. person.358 Another, 50 U.S.C. 1881b, covers situations when the American target is overseas but the gathering involves electronic communications or stored electronic communications or data acquired in this country.359 The third, 50 U.S.C. 1881c, applies to situations when the American target is overseas, but Section 1881b is not available, either because acquisition occurs outside of the United States or because it involves something other than electronic surveillance or the acquisition of stored communications or data, e.g., a physical search.360
In the case of targets who are not U.S. persons, Section 1881a(a) declares "upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." It makes no mention of authorizing acquisition. It merely speaks of targeting with an eye to acquisition. Moreover, it gives no indication of whether the anticipated methods of acquisition include the capture of a target's communications, of communications relating to a target, of communications of a person or entity related to the target, or information concerning one of the three. The remainder of the section, however, seems to dispel some of the questions. Section 1881a is intended to empower the Attorney General and the Director of National Intelligence to authorize the acquisition of foreign intelligence information and the methods that may be used to the capture of communications and related information.
The procedure begins either with a certification presented to the FISA court for approval or with a determination by the two officials that exigent circumstances warrant timely authorization prior to court approval.361 In the certification process, they must assert in writing and under oath that:
The certification is be accompanied by a copy of the targeting and minimization procedures, any supporting affidavits from senior national security officials, an indication of the effective date of the authorization, and a notification of whether pre-approval emergency authorization has been given.363 The certification, however, need not describe the facilities or places at which acquisition efforts will be directed.364
The limitations preclude intentionally targeting a person in the U.S., "reverse targeting" (intentionally targeting a person overseas purpose of targeting a person within the U.S.), intentionally targeting a U.S. person outside the U.S., intentionally acquiring a communication in which all of the parties are in the U.S., or conducting the acquisition in a manner contrary to the demands of the Fourth Amendment.365
The Attorney General, in consultation with the Director of National Intelligence, is obligated to promulgate targeting and minimization procedures and guidelines to ensure that the section's limitations are observed.366 The minimization procedures must satisfy the standards required for similar procedures required for FISA electronic surveillance and physical searches.367 The targeting procedures must be calculated to avoid acquiring communications in which all of the parties are in the U.S. and to confine targeting to persons located outside the U.S.368 Both are subject to review by the FISA court for sufficiency when it receives the request to approve the certification.369 Copies of the guidelines, which also provide directions concerning the application for FISA court approval under the section, must be supplied to court and to the congressional intelligence and judiciary committees.370
The Attorney General and Director of National Intelligence may instruct an electronic communications service provider to assist in the acquisition. Cooperative providers are entitled to compensation and are immune from suit for their assistance.371 They may also petition the FISA court to set aside or modify the direction for assistance, if it is unlawful.372 The Attorney General may petition the court to enforce a directive against an uncooperative provider.373 The court's decisions concerning certification approval, modification of directions for assistance, and enforcement of the directives are each appealable to the Foreign Intelligence Court of Review and on certiorari to the Supreme Court.374
Except with respect to disclosure following a failure to secure court approval of an emergency authorization, Section 1806, discussed earlier, governs the use of information obtained under the authority of Section 1881a.375
When the overseas target is an American individual or entity and acquisition is to occur in this country, the court may authorize acquisition by electronic surveillance or by capturing stored electronic communications or data under Section 1881b. The Attorney General must approve the application which must be made under oath and indicate:
The court must issue an acquisition order upon a finding that the application satisfies statutory requirements, the minimization procedures are adequate, and there is probable cause to believe that the American target is located overseas and is a foreign power or its agent, officer or employee.377 The court must explain in writing any finding that the application's assertion of probable cause, minimization procedures, or certified facts is insufficient.378 Such findings are appealable to the Foreign Intelligence Surveillance Court of Review and under certiorari to the Supreme Court.379
The court's order approving acquisition is to include the identity or description of the American target, the type of activities targeted, the nature of the information sought, the means of acquisition, and duration of the order.380 The order will also call for compliance with the minimization procedures, and when appropriate, for confidential, minimally disruptive provider assistance, compensated at a prevailing rate.381 Providers are immune from civil liability for any assistance they are directed to provide.382
As in other instances, in emergency cases the Attorney General may authorize acquisition pending approval of the court.383 The court must be notified of the Attorney General's decision and the related application must be filed within 7 days.384 If emergency acquisition is not judicially approved subsequently, no resulting evidence may be introduced in any judicial, legislative or regulatory proceedings unless the target is determined not to be an American, nor may resulting information be shared with other federal officials without the consent of the target, unless the Attorney General determines that the information concerns a threat of serious bodily injury.385 Except with respect to disclosure following a failure to court approval of an emergency authorization, Section 1806, discussed earlier, governs the use of information obtained under the authority of Section 1881a.386
The second provision for targeting an American overseas in order to acquire foreign intelligence information, Section 1881c, is somewhat unique. Both FISA surveillance and Title III have been understood to apply only to interceptions within the United States.387 Neither has been thought to apply overseas. Section 1881c, however, may be used for acquisitions outside the United States. Moreover, it may be used for acquisitions inside the United States as long as the requirements that would ordinarily attend such acquisition are honored.388 Otherwise, Section 1881c features many of the same application, approval, and appeal provisions as Section 1881b.
Authorization is available under a court order or in emergency circumstances under the order of the Attorney General.389 Acquisition activities must be discontinued during any period when the target is thought to be in the United States.390 Unlike 1881b, however, it is not limited to electronic surveillance or the acquisition of stored electronic information. Moreover, it declares that in the case of acquisition abroad recourse to a court order need only be had when the target American, found overseas, has a reasonable expectation of privacy and a warrant would be required if the acquisition efforts had taken place in the United States and for law enforcement purposes.391
A challenge to the constitutionality of Section 1881a was initially dismissed because the district court did not believe the plaintiffs had shown that they had standing (i.e., a sufficient individual injury attributable to execution of the statute's authority).392 The Second Circuit disagreed.393 The Supreme Court has agreed to consider the case.394
Every 6 months, the Attorney General must report on the use of FISA authority.395 Recipients are the House and Senate Judiciary Committees and the House and Senate Intelligence committees.396 In a manner consistent with the protection of national security, the transmission must provide:
As used in this chapter—
(1 ) "wire communication" means any aural transfer made in whole or in part through the use of facilities 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 connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce;
(2) "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;
(3) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;
(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, oral, or electronic communication other than—
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;
(b)a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
(6) "person" means any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation;
(7) "Investigative or law enforcement officer" means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;
(8) "contents", when used with respect to any wire, oral, or electronic communication, includes any information concerning the 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, oral, or electronic communications;
(10) "communication common carrier" has the meaning given the term in section 3 of the Communications Act of 1934;
(11) "aggrieved person" means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed;
(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, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
(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 wire or electronic communications, and any computer facilities or related electronic equipment for the electronic 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 respect to a radio communication, that such communication is not—
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;
(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 electronic communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;
(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.
(19) "foreign intelligence information", for purposes of section 2517(6) of this title, means—
(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against—
(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(ii) sabotage or intentional terrorism by a foreign power or an agent of a foreign power; or
(iii) clandestine intelligence activities by and intelligence service or network of a foreign power or by an agent of a foreign power; or
(B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to—
(i) the national defense or the security of the United States; or
(ii) the conduct of the foreign affairs of the United States.
(20) "protected computer" has the meaning set forth in section 1030; and
(21) "computer trespasser"—
(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and
(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or 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 premises of any business or other commercial establishment 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 possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider 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, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
[P.L. 110-261, Sec. 101(c)(1)] (A) a court order directing such assistance or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge,
[P.L. 110-261, Sec.403(b)(2)(C)] Effective December 31, 2017 . . . (C) except as provided in section 404, section 2511(2)(A)(ii)(A) of title 18, United States Code, is amended by striking "or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978".
[P.L. 110-261, Sec. 404(b)(3)] Challenge of directives; protection from liability; use of information—Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) . . . (E) section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978, as added by section 101(a)[50 U.S.C. 1881c]; 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 specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.
(iii) If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision and shall certify that the statutory requirements have been met.
(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication 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, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication 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.
(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, 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 or chapter 121 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, oral, and electronic communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—
(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
(ii) to intercept any radio communication which is transmitted—
(I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
(II) by any governmental, law enforcement, civil defense, private land mobile, or public safety 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
(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 encrypted.
(h) It shall not be unlawful under this chapter—
(i) to use a pen register or a trap and trace device (as those terms are defined for the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title); or
(ii) for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—
(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer;
(II) the person acting under color of law is lawfully engaged in an investigation;
(III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and
(IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser.
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such 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 years, or both.
(b) Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted—
(i) to a broadcasting station for purposes of retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls,
is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain.
(c)[Redesignated (b)]
(5)(a)(i) If the communication is—
(A) a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial 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 encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain,
then the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent jurisdiction.
(ii) In an action under this subsection—
(A) if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Federal Government shall be entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a 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 injunction.
(1) Except as otherwise specifically provided in this chapter, any person who intentionally—
(a) sends through the mail, or sends or carries 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, oral, or electronic communications;
(b) manufactures, assembles, possesses, or sells 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, 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 or disseminates by electronic means 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 surreptitious interception of wire, 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, oral, or electronic communications,
knowing the content of the advertisement and 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 under this title or imprisoned not more than five years, or both.
(2)It shall not be unlawful under this section for—
(a) a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service, or
(b) an officer, agent, or employee of, or a person under contract 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 commerce, or manufacture, assemble, possess, or sell 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, oral, or electronic communications.
(3)It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which is duly authorized to use such device.
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 customs laws contained in title 19 of the United States Code shall be performed with respect to seizure and forfeiture of electronic, mechanical, or other intercepting devices under this section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
(1) The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney 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 or 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 evidence of—
(a) any offense punishable by death or by imprisonment for more than one year under sections 2122 and 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of 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 10 (relating to biological weapons) chapter 37 (relating to espionage), chapter 55 (relating to kidnapping), chapter 90 (relating to protection of trade secrets), chapter 105 (relating to sabotage), chapter 115 (relating to treason), chapter 102 (relating to riots), chapter 65 (relating to malicious mischief), chapter 111 (relating to destruction of vessels), or chapter 81 (relating 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 murder, kidnapping, robbery, or extortion, and which is punishable under this title;
(c) any offense which is punishable under the following sections of this title: section 37 (relating to violence at international airports), section 43 (relating to animal enterprise terrorism), section 81 (arson within special maritime and territorial jurisdiction), section 201 (bribery of public officials and witnesses), section 215 (relating to bribery of bank officials), section 224 (bribery in sporting contests), subsection (d), (e), (f), (g), (h), or (i) of section 844 (unlawful use of explosives), section 1032 (relating to concealment of assets), section 1084 (transmission of wagering information), section 751 (relating to escape), section 832 (relating to nuclear and weapons of mass destruction threats), section 842 (relating to explosive materials), section 930 (relating to possession of weapons in Federal facilities), section 1014 (relating to loans and credit applications generally; renewals and discounts), section 1114 (relating to officers and employees of the United States), section 1116 (relating to protection of foreign officials), sections 1503, 1512, and 1513 (influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal investigations), section 1511 (obstruction of State or local law enforcement), section 1591 (sex trafficking of children by force, fraud, or coercion), section 1751 (Presidential and Presidential staff assassination, kidnapping, and assault), section 1951 (interference with commerce by threats or violence), section 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), section 1958 (relating to use of interstate commerce facilities in the commission of murder for hire), section 1959 (relating to violent crimes in aid of racketeering activity), section 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plan), section 1955 (prohibition of business enterprises of gambling), section 1956 (laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 659 (theft from interstate shipment), section 664 (embezzlement from pension and welfare funds), section 1343 (fraud by wire, radio, or television), section 1344 (relating to bank fraud), section 1992 (relating to terrorist attacks against mass transportation), sections 2251 and 2252 (sexual exploitation of children), section 2251A (selling or buying of children), section 2252A (relating to material constituting or containing child pornography), section 1466A (relating to child obscenity), section 2260 (production of sexually explicit depictions of a minor for importation into the United States), sections 2421, 2422, 2423, and 2425 (relating to transportation for illegal sexual activity and related crimes), sections 2312, 2313, 2314, and 2315 (interstate transportation of stolen property), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), section 2340A (relating to torture), section 1203 (relating to hostage taking), section 1029 (relating to fraud and related activity in connection with access devices), section 3146 (relating 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 38 (relating to aircraft parts fraud), section 1963 (violations with respect to racketeer influenced and corrupt organizations), section 115 (relating to threatening or retaliating against a Federal official), section 1341 (relating to mail fraud), a felony violation of section 1030 (relating to computer fraud and abuse), section 351 (violations with respect to congressional, Cabinet, or Supreme Court assassinations, kidnapping, and assault), section 831 (relating to prohibited transactions involving nuclear materials), section 33 (relating to destruction of motor vehicles or motor vehicle facilities), section 175 (relating to biological weapons), section 175c (relating to variola virus), section 956 (conspiracy to harm persons or property overseas), section a felony violation of section 1028 (relating to production of false identification documentation), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), section 1541 (relating to passport issuance without authority), section 1542 (relating to false statements in passport applications), section 1543 (relating to forgery or false use of passports), section 1544 (relating to misuse of passports), or section 1546 (relating to fraud and misuse of visas, permits, and other documents); section 555 (relating to construction or use of international border tunnels);
(d) any offense involving counterfeiting punishable under section 471, 472, or 473 of this title;
(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), or section 5324 of title 31, United States Code (relating to structuring transactions to evade reporting requirement prohibited);
(h) any felony violation of sections 2511 and 2512 (relating to interception and disclosure of certain communications and to certain intercepting devices) of this title;
(i) any felony violation of chapter 71 (relating to obscenity) of this title;
(j) any violation of section 60123(b) (relating to destruction of a natural gas pipeline), section 46502 (relating to aircraft piracy), the second sentence of section 46504 (relating to assault on a flight crew with dangerous weapon), or section 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life, by means of weapons on aircraft) of title 49;
(k) any criminal violation of section 2778 of title 22 (relating to the Arms Export Control Act);
(l) the location of any fugitive from justice from an offense described in this section;
(m) a violation of section 274, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324, 1327, or 1328) (relating to the smuggling of aliens);
(n) any felony violation of sections 922 and 924 of title 18, United States Code (relating to firearms);
(o) any violation of section 5861 of the Internal Revenue Code of 1986 (relating to firearms);
(p) a felony violation of section 1028 (relating to production of false identification documents), section 1542 (relating to false statements in passport applications), section 1546 (relating to fraud and misuse of visas, permits, and other documents, section 1028A (relating to aggravated identity theft)) of this title or a violation of section 274, 277, or 278 of the Immigration and Nationality Act (relating to the smuggling of aliens); or
(q) any criminal violation of section 229 (relating to chemical weapons): or sections 2332, 2332a, 2332b, 2332d, 2332f, 2332g, 2332h 2339, 2339A, 2339B, 2339C, or 2339D of this title (relating to terrorism);
(r) any criminal violation of section 1 (relating to illegal restraints of trade or commerce), 2 (relating to illegal monopolizing of trade or commerce), or 3 (relating to illegal restraints of trade or commerce in territories or the District of Columbia) of the Sherman Act (15 U.S.C. 1, , 3); or
(s) any conspiracy to commit any offense described in any subparagraph of this paragraph.
(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement 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 dealing 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 authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer 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.
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official 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, oral, or electronic communication or evidence derived therefrom may 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, oral, or electronic communication, or evidence derived therefrom intercepted 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, 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 engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, 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 evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
(6) Any investigative or law enforcement officer, or attorney for the Government, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the National Security act of 1947 (50 U.S.C. 401a), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.
(7) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents or derivative evidence to a foreign investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure, and foreign investigative or law enforcement officers may use or disclose such contents or derivative evidence to the extent such use or disclosure is appropriate to the proper performance of their official duties.
(8) Any investigative or law enforcement officer, or other Federal official in carrying out official duties as such Federal official, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents or derivative evidence to any appropriate Federal, State, local, or foreign government official to the extent that such contents or derivative evidence reveals a threat of actual or potential attack or other grave hostile acts of a foreign power of an agent of as foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, for the purpose of preventing or responding to such a threat. Any official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information, and any State, local, or foreign official who receives information pursuant to this provision may use that information only consistent with such guidelines as the Attorney General and Director of Central Intelligence shall jointly issue.
(1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description 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 to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
(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 interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication 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, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such 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 testimony 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, 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 belief that particular communications 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, 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, oral, or electronic communication under this chapter shall specify—
(a) the identity of the person, if known, whose communications are to be intercepted;
(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense 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 authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing such facilities or assistance. Pursuant to section 2522 of this chapter, an order may also be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Law Enforcement Act.
(5) No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective 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 section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing 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 authorization 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 objective, or in any event in thirty days. In the event the intercepted communication 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 chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
(6) Whenever an order authorizing interception is entered pursuant 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 intervals as the judge may require.
(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably 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 security interest, or
(iii) conspiratorial activities characteristic of organized crime,
that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception 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, oral, or electronic communication 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, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, 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, oral, or electronic communication 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, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. 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. Duplicate 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 subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived 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 punished 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 application, 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, approved or disapproved interception, or the denial of the application; and
(3) the fact that during the period wire, 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 serving of the inventory required by this subsection may be postponed.
(9) The contents of any wire, oral, or electronic communication 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 than 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 evidence 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
(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 granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained 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 subsection, or the denial of an application for an order of approval, if the United States attorney 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 prosecuted.
(c) The remedies and sanctions described in this chapter with respect 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 this section 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 interception of an oral communication—
(i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General;
(ii) the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
(iii) the judge finds that such specification is not practical; and
(b) in the case of an application with respect to a wire or electronic communication—
(i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, 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 that there is probable cause to believe that the person's actions could have the effect of thwarting interception from a specified facility;
(iii) the judge finds that such showing has been adequately made; and
(iv) the order authorizing or approving the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted.
(12) An interception of a communication under an order with respect to which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do not apply by reason of subsection (11)(a) shall not begin until the place where the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications 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.
(1) In January of each year, any judge who has issued an order (or an extension thereof) under section 2518 that expired during the preceding year, or who has denied approval of an interception during that year, 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 2518(3)(d) of this title did not apply by reason of section 2518(11) of this title);
(c) the fact that the order or extension was granted as applied 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 extension of an order;
(f) the identity of the applying investigative or law enforcement 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 March 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 prosecuting 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 communications intercepted, (iii) the approximate number of persons whose communications were intercepted, (iv) the number of orders in which encryption was encountered and whether such encryption prevented law enforcement from obtaining the plain text of communications intercepted pursuant to such order, and (v) the approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
(c) the number of arrests resulting from interceptions made under such order or extension, and the offenses for which arrests 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 interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions; 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 June 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, 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 section. 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.
(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 other than the United States which engaged in that violation such relief as may be appropriate.
(b) Relief.—In an 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 punitive damages in appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) Computation of damages.—(1) In an action under this section, if the conduct 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 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 encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:
(A) If the person who engaged in that conduct has not previously 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 $1000.
(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 violation; 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 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) or 2511(2)(i) 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 commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.
(f) Administrative Discipline.—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the possible violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
(g) Improper Disclosure Is Violation.—Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by section 2517 is a violation of this chapter for purposes of section 2510(a).
Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or will constitute a felony violation of this chapter, the Attorney General may initiate a civil action in a district court of the United States to enjoin such violation. The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.
(a) Enforcement by court issuing surveillance order.—If a court authorizing an interception under this chapter, a State statute, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or authorizing use of a pen register or a trap and trace device under chapter 206 or a State statute finds that a telecommunications carrier has failed to comply with the requirements of the Communications Assistance for Law Enforcement Act, the court may, in accordance with section 108 of such Act, direct that the carrier comply forthwith and may direct that a provider of support services to the carrier or the manufacturer of the carrier's transmission or switching equipment furnish forthwith modifications necessary for the carrier to comply.
(b) Enforcement upon application by Attorney General.—The Attorney General may, in a civil action in the appropriate United States district court, obtain an order, in accordance with section 108 of the Communications Assistance for Law Enforcement Act, directing that a telecommunications carrier, a manufacturer of telecommunications transmission or switching equipment, or a provider of telecommunications support services comply with such Act.
(c) Civil penalty.—
(1) In general.—A court issuing an order under this section against a telecommunications carrier, a manufacturer of telecommunications transmission or switching equipment, or a provider of telecommunications support services may impose a civil penalty of up to $10,000 per day for each day in violation after the issuance of the order or after such future date as the court may specify.
(2) Considerations.—In determining whether to impose a civil penalty and in determining its amount, the court shall take into account—
(A) the nature, circumstances, and extent of the violation;
(B) the violator's ability to pay, the violator's good faith efforts to comply in a timely manner, any effect on the violator's ability to continue to do business, the degree of culpability, and the length of any delay in undertaking efforts to comply; and
(c) such other matters as justice may require.
(d) Definitions.—As used in this section, the terms defined in section 102 of the Communications Assistance for Law Enforcement Act have the meanings provided, respectively, in such section.
(a) Offense.—Except as provided in subsection (c) of this section whoever—
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
(b) Punishment.—The punishment for an offense under subsection (a) of this section is—
(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the constitution and laws of the United States or any state—
(A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and
(B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and
(2) (A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a
first offense under this paragraph; and
(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.
(c) Exceptions.—Subsection (a) of this section does not apply with respect to conduct authorized—
(1) by the person or entity providing a wire or electronic communications service;
(2) by a user of that service with respect to a communication of or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.
(a) Prohibitions.—Except as provided in subsection (b) or (c)—
(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and
(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;
(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; and
(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
(b) Exceptions for disclosure of communications.—A provider described in subsection (a) may divulge the contents of a communication—
(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;
(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;
(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A;
(7) to a law enforcement agency—
(A) if the contents—
(i)were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or
[(B) Repealed. P.L. 108-21, Title V, § 508(b)(1)(A), Apr. 30, 2003, 117 Stat. 684]
[(C) Repealed. P.L. 107-296, Title II, § 225(d)(1)(C), Nov. 25, 2002, 116 Stat. 2157]
(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.
(c) Exceptions for disclosure of customer records.—A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—
(1)as otherwise authorized in section 2703;
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;
(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A7; or
(6) to any person other than a governmental entity.
(d) Reporting of emergency disclosures.—On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—
(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8); and
(2) a summary of the basis for disclosure in those instances where—
(A) voluntary disclosures under subsection (b)(8) were made to the Department of Justice; and
(B) the investigation pertaining to those disclosures was closed without the filing of criminal charges.
(a) Contents of wire or electronic communications in electronic storage.—A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in a wire or electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or 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)(1) 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 wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction by a court with jurisdiction; or
(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
(ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (1) is applicable with respect to any wire or 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 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.
(c) Records concerning electronic communication service or remote computing service.—(1)(A) A government entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications).
(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity only when the governmental entity—
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction by a court with jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of this section;
(C) has the consent of the subscriber or customer to such disclosure; or
(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or
(E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment (including any credit car or bank account number), of a subscriber to or customer of such service, when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).
(3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
(d) Requirements for court order.—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
(e) No cause of action against a provider disclosing information under this chapter.—No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena , statutory authorization, or certification under this chapter.
(f) Requirement to preserve evidence.—(1) In general.—A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.
(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.
(g) Presence of Officer not Required.—Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service.
(a) Backup preservation.—(1) A governmental entity acting under section 2703(b)(2) may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such service provider shall create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the governmental entity that such backup copy has been made. Such backup copy shall be created within two business days after receipt by the service provider of the subpoena or court order.
(2) Notice to the subscriber or customer shall be made by the governmental entity within three days after receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a).
(3) The service provider shall not destroy such backup copy until the later of—
(A) the delivery of the information; or
(B) the resolution of any proceedings (including appeals of any proceeding) concerning the government's subpoena or court order.
(4) The service provider shall release such backup copy to the requesting governmental entity no sooner than fourteen days after the governmental entity's notice to the subscriber or customer if such service provider—
(A) has not received notice from the subscriber or customer that the subscriber or customer has challenged the governmental entity's request; and
(B) has not initiated proceedings to challenge the request of the governmental entity.
(5) A governmental entity may seek to require the creation of a backup copy under subsection (a)(1) of this section if in its sole discretion such entity determines that there is reason to believe that notification under section 2703 of this title of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber or customer or service provider.
(b) Customer challenges.—(1) Within fourteen days after notice by the governmental entity to the subscriber or customer under subsection (a)(2) of this section, such subscriber or customer may file a motion to quash such subpoena or vacate such court order, with copies served upon the governmental entity and with written notice of such challenge to the service provider. A motion to vacate a court order shall be filed in the court which issued such order. A motion to quash a subpoena shall be filed in the appropriate United States district court or State court. Such motion or application shall contain an affidavit or sworn statement—
(A) stating that the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for him have been sought; and
(B) stating the applicant's reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this chapter in some other respect.
(2) Service shall be made under this section upon a governmental entity by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received pursuant to this chapter. For the purposes of this section, the term "delivery" has the meaning given that term in the Federal Rules of Civil Procedure.
(3) If the court finds that the customer has complied with paragraphs (1) and (2) of this subsection, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity includes in its response the reasons which make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties' initial allegations and response, the court may conduct such additional proceedings as it deems appropriate. All such proceedings shall be completed and the motion or application decided as soon as practicable after the filing of the governmental entity's response.
(4) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed.
(5) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer.
(a) Delay of notification.—(1) A governmental entity acting under section 2703(b) of this title may—
(A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or
(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection.
(2) An adverse result for the purposes of paragraph (1) of this subsection is—
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(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 certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section.
(5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that—
(A) states with reasonable specificity the nature of the law enforcement inquiry; and
(B) informs such customer or subscriber—
(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;
(ii) that notification of such customer or subscriber was delayed;
(iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and
(iv) which provision of this chapter allowed such delay.
(6) As used in this subsection, the term "supervisory official" means the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency's headquarters or regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent of a prosecuting attorney's headquarters or regional office.
(b) Preclusion of notice to subject of governmental access.—A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in—
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(a) Payment.—Except as otherwise provided in subsection (c), a governmental entity obtaining the contents of communications, records, or other information under section 2702, 2703, or 2704 of this title shall pay to the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information. Such reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service in which such information may be stored.
(b) Amount.—The amount of the fee provided by subsection (a) shall be as mutually agreed by the governmental entity and the person or entity providing the information, or, in the absence of agreement, shall be as determined by the court which issued the order for production of such information (or the court before which a criminal prosecution relating to such information would be brought, if no court order was issued for production of the information).
(c) Exception.—The requirement of subsection (a) of this section does not apply with respect to records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under section 2703 of this title. The court may, however, order a payment as described in subsection (a) if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider.
(a) Cause of action.—Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity other than the United States which engaged in that violation such relief as may be appropriate.
(b) Relief.—In a civil action under this section, appropriate relief includes—
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) Damages.—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.
(d) Administrative Discipline.—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the possible violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
(e) Defense.—A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) of this title);
(2) a request of an investigative or law enforcement officer under 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.
(f) Limitation.—A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.
(g) Improper Disclosure Is Violation.—Any willful disclosure of a "record", as that term is defined in section 552a(a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section 3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official duties of the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.
The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.
(a) Duty to provide—A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required certification—The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—
(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure—(1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counter terrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.
(2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a).
(d) Dissemination by bureau—The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.
(e) Requirement that certain congressional bodies be informed—On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.
(f) Libraries—A library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally by patrons for their use, review, examination, or circulation, is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) ("electronic communication service") of this title.
As used in this chapter—
(1) the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that section;
(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;
(3) the term "court of competent jurisdiction" includes -
(A) any district court of the United States (including a magistrate judge of such a court) or any
United States court of appeals that -
(i) has jurisdiction over the offense being investigated;
(ii) is in or for a district in which the provider of a wire or electronic communication service is
located or in which the wire or electronic communications, records, or other information are stored; or
(iii) is acting on a request for foreign assistance pursuant to section 3512 of this title; or
(B) a court of general criminal jurisdiction of a State authorized by the law of that State to issue
search warrants; and
(4) the term "governmental entity" means a department or agency of the United States or State or political subdivision thereof.
(a) In General.—Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes a violation of this chapter or of chapter 119 of this title or of the above special provisions of title 50, the Court may assess as damages—
(1) actual damages, but not less than $10,000, whichever amount is greater; and
(2) litigation costs, reasonably incurred.
(b) Procedures.—(1) Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code.
(2) Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The claim shall accrue on the date upon which the claimant first has a reasonable opportunity to discover the violation.
(3) Any action under this section shall be tried in the court without a jury.
(4) Notwithstanding any other provision of law, the procedures set forth in section 106(f), 305(g), or 405(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which materials governed by those sections may be reviewed.
(5) An amount equal to any award against the United States under this section shall be reimbursed by the department or agency concerned to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, fund, or account that is available for the enforcement of any Federal law) that is available for the operating expenses of the department or agency concerned.
(c) Administrative Discipline.—If a court or appropriate department or agency determines that the United States or any of the departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the possible violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
(d) Exclusive Remedy.—Any action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section.
(e) Stay of Proceedings.—(1) Upon the motion of the united States, the curt shall stay any action commenced under this section f the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or the prosecution of a related criminal case. Such a stay shall toll the limitations periods of paragraph (2) of subsection (b).
(2) In this subsection, the terms "related criminal case" and "related investigation" means an actual prosecution or investigation in progress at the time at which the request for the stay or any subsequent motion to lift the stay is made. In determining whether any investigation or a criminal case is related to an action commenced under this section, the court shall consider the degree of similarity between the parties, witnesses, facts, and circumstances involved in the 2 proceedings, without requiring that nay one or more factors be identical.
(3) In requesting a stay under paragraph (1), the Government may, in appropriate cases submit evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. If the Government makes such an ex parte submission, the plaintiff shall be given an opportunity to make a submission to the court, not ex parte, and the court may, in its discretion, request further information from either party.
(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 of service or unlawful use of service; or
(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or
(3) where the consent of the user of that service has been obtained.
(c) Limitation—A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in identifying the origination or destination of wire or electronic communications.
(d) Penalty—Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than one year, or both.
(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 competent jurisdiction.
(2) Unless prohibited by State law, a State investigative or law enforcement officer may make application for an order or an extension of an order under section 3123 of this title authorizing or 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 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 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.
(a) In general. (1) Upon an application made under section 3122(a)(1) 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 if the court finds, based on facts contained in the application, that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. Such order shall, upon service of such order, apply to any entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order.
(2) Upon an application made under section 3122(a)(2) 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 within the jurisdiction of the court if the court finds, based on facts contained in the application, that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.
(3)(A) Where the law enforcement agency implementing an ex part order under this
subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public the agency shall ensure that a record will be maintained which will identify—
(i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;
(ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;
(iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and
(iv) any information which has been collected by the device.
To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of the such device.
(B) The record maintained under subparagraph (A) shall be provided ex parte and under seal to the court which entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order (including any extensions thereof).
(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 or other facility to which the pen register or trap and trace device is to be attached or applied;
(B) the identity, if known, of the person who is the subject of the criminal investigation;
(C) the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), the geographic limits of the 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 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 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 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 or other facility to which the pen register or a trap and trace device is attached, or applied, or who is obligated by the order 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.
(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 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 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 install such device forthwith on the appropriate line or other facility and shall furnish such investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively 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 installation 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, pursuant to section 3123(b) or section 3125 of this title, to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular 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 section shall be reasonably compensated for such reasonable 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 service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with a court order under this chapter or request pursuant to section 3125 of this title.
(e) Defense—A good faith reliance on a court order under this chapter, a request pursuant to section 3125 of this title, 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.
(f) Communications assistance enforcement orders—Pursuant to section 2522, an order may be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Law Enforcement Act.
(a) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
(1) an emergency situation exists that involves—
(A) immediate danger of death or serious bodily injury to any person; <del>or</del>
(B) conspiratorial activities characteristic of organized crime;
(C) an immediate threat to a national security interest; or
(D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year;
that requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and
(2) there are grounds upon which an order could be entered under this chapter to authorize such installation and use;
may have installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance with section 3123 of this title.
(b) In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier.
(c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap and trace device pursuant to subsection (a) without application for the authorizing order within forty-eight hours of the installation shall constitute a violation of this chapter.
(d) A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance.
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 Justice, which report shall include information concerning—
(1) the period of interceptions authorized by the order, and the number and duration of any extensions of the order;
(2) the offense specified in the order or application, or extension of an order;
(3) the number of investigations involved;
(4) the number and nature of the facilities affected; and
(5) the identity, including district, of the applying investigative or law enforcement agency making the application and the person authorizing the order.
As used in this chapter—
(1) the terms "wire communication," "electronic communication," "electronic communication service," and "contents" have the meanings set forth for such terms in section 2510 of this title;
(2) the term "court of competent jurisdiction" means—
(A) any district court of the United States (including a magistrate judge of such a court) or any
United States court of appeals that—
(i) has jurisdiction over the offense being investigated;
(ii) is in or for a district in which the provider of a wire or electronic communication service is
located;
(iii) is in or for a district in which a landlord, custodian, or other person subject to subsections (a) or
(b) of section 3124 of this title is located; or
(iv) is acting on a request for foreign assistance pursuant to section 3512 of this title; 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 or process which records or decodes or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process 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 provider or any device or process used by a provider or customer of a wire communication 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 or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication;
(5) the term "attorney for the Government" has the meaning given such term for the purposes of the Federal Rules of Criminal 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.
As used in this subchapter:
(a) "Foreign power" means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons;
(6) an entity that is directed and controlled by a foreign government or governments; or
(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.
(b) "Agent of a foreign power" means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
(C) engages in international terrorism or activities in preparation therefore;
[P.L. 109-177, Sec. 103, as amended by P.L. 112-14, Sec.2(b)] Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004. (b) Sunset.—In General.—Except as provided in paragraph (2), the amendment made by subsection (a)[enacting section 1801(a)(1)(C) in bold italics above] shall cease to have effect on June 1, 2015.
(2) Exception.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which the provisions cease to have effect, such provisions shall continued in effect.
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power;
or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) "International terrorism" means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) "Sabotage" means activities that involve a violation of chapter 105 of Title 18, or that would involve such a violation if committed against the United States.
(e) "Foreign intelligence information" means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) "Electronic surveillance" means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General for National Security under section 507A of title 28, United States Code.
(h) "Minimization procedures", with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) "Person" means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
(p) "Weapon of mass destruction" means.—
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.
50 U.S.C. 1801 note [P.L. 110-261, §401] Severability.
If any provision of this Act [P.L. 110-261], any amendment made by this Act, or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act, of any such amendments, and of the application of such provisions to other persons and circumstances shall not be affected thereby.
(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i)the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801(h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.
(a)Court to hear applications and grant orders; record of denial; transmittal to court of review.
(1) The Chief Justice of the United States shall publicly designate 11 district court judges from at least seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter, except that no judge designated under this subsection (except when sitting en banc under paragraph (2) shall hear the same application for electronic surveillance under this chapter which has been denied previously by another judge designated under this subsection. If any judge so designated denies an application for an order authorizing electronic surveillance under this chapter, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b) of this section.
(2)(A) The court established under this subsection may, on its own initiative, or upon the request of the Government in any proceeding or a party under section 501(f)[50 U.S.C. 1861(f)] or paragraph (4) or (5) of section 702(h)[50 U.S.C. 1881a(h)], hold a hearing or rehearing, en banc, when ordered by a majority of the judges that constitute such court upon a determination that—
(i)en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(ii) the proceeding involves a question of exceptional importance.
(B) Any authority granted by this Act to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this Act on the exercise of such authority.
(C) For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(c) Expeditious conduct of proceedings; security measures for maintenance of records
Proceedings under this chapter shall be conducted as expeditiously as possible. The record of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.
(d) Tenure
Each judge designated under this section shall so serve for a maximum of seven years and shall not be eligible for redesignation, except that the judges first designated under subsection (a) of this section shall be designated for terms of from one to seven years so that one term expires each year, and that judges first designated under subsection (b) of this section shall be designated for terms of three, five, and seven years.
(e)(1) Three judges designated under subsection (a) of this section who reside within 20 miles of the District of Columbia, or, if all of such judges are unavailable, other judges of the court established under subsection (a) of this section as may be designated by the presiding judge of such court, shall comprise a petition review pool which shall have jurisdiction to review petitions filed pursuant to section 1861(f)(1) or 1881a(h)(4) of this title.
(2) Not later than 60 days after March 9, 2006, the court established under subsection (a) of this section shall adopt and, consistent with the protection of national security, publish procedures for the review of petitions filed pursuant to section 1861(f)(1) or 1881a(h)(4) of this title by the panel established under paragraph (1). Such procedures shall provide that review of a petition shall be conducted in camera and shall also provide for the designation of an acting presiding judge.
(f)(1) A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any title of this Act, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.
(2) The authority described in paragraph (1) shall apply to an order entered under any provision of this Act.
(g)(1) The courts established pursuant to subsections (a) and (b) of this section may establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under this chapter.
(2) The rules and procedures established under paragraph (1), and any modifications of such rules and procedures, shall be recorded, and shall be transmitted to the following:
(A) All of the judges on the court established pursuant to subsection (a) of this section.
(B) All of the judges on the court of review established pursuant to subsection (b) of this section.
(C) The Chief Justice of the United States.
(D) The Committee on the Judiciary of the Senate.
(E) The Select Committee on Intelligence of the Senate.
(F) The Committee on the Judiciary of the House of Representatives.
(G) The Permanent Select Committee on Intelligence of the House of Representatives.
(3) The transmissions required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex.
(h) Nothing in this Act shall be construed to reduce or contravene the inherent authority of the court established under subsection (a) to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court.
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1805 of this title.
(d) Requirements regarding certain application
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to
approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and
(4) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2) of this section, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
(1) Specifications
An order approving an electronic surveillance under this section shall specify—
(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 1804(a)(3) of this title;
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and
(E) the period of time during which the electronic surveillance is approved. <del>; and</del>
(2) Directions
An order approving an electronic surveillance under this section shall direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds, based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
[P.L. 109-177, Sec. 102(b) as amended by P.L. 112-14, Sec.2(a)] (1) In General.—Effective June 1, 2015, the Foreign Intelligence Surveillance Act of 1978 is amended so that section[] 105(c)(2 read[s] as [it] read on October 25, 2001 [, that is, without the language in bold italics above].
(2) Exception.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which the provisions cease to have effect, such provisions shall continued in effect.
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(3) Special directions for certain orders
An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—
(A) the nature and location of each new facility or place at which the electronic surveillance is directed;
(B) the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;
(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and
(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.
(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 101(a) of this title, or against a foreign power as defined in section 1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e)(1) Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—
(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;
(B) reasonably determines that the factual basis for the issuance of an order under this title to approve such electronic surveillance exists;
(C) informs, either personally or through a designee, a judge having jurisdiction under section 103 at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and
(D) makes an application in accordance with this title to a judge having jurisdiction under section 103 as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.
(2) If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 103.
(5) In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—
(1) test the capability of electronic equipment, if—
(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:
(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce chapter 119 of Title 18, or section 605 of Title 47, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic surveillance equipment, if—
(A) it is not reasonable to—
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or
(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(g) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to section 1802(a) of this title and applications made and orders granted under this subchapter shall be retained for a period of at least ten years from the date of the certification or application.
(h) Release from liability
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.
(i) In any case in which the Government makes an application to a judge under this title to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in 50 U.S.C. 1842(d)(2).
50 U.S.C. 1805a. Clarification of electronic surveillance of persons outside the United States [Expired].
50 U.S.C. 1805b. Additional procedure for authorizing certain acquisitions concerning persons located outside the United States [Expired].
50 U.S.C. 1805c. Submission to court of review of procedures [Expired].
(a) Compliance with minimization procedures; privileged communications; lawful purposes
Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Motion to suppress
Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other 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 evidence obtained or derived from such electronic surveillance on the grounds that—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
f the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Finality of orders
Orders granting motions or requests under subsection (g) of this section, decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under section 1805(e) of this title and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of—
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Consultation with Federal law enforcement officer
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 104(a)(7)(B) or the entry of an order under section 105.
In April of each year, the Attorney General shall transmit to the Administrative Office of the United States Court and to Congress a report setting forth with respect to the preceding calendar year—
(a) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter; and
(b) the total number of such orders and extensions either granted, modified, or denied.
(a)(1) On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, and the Committee on the Judiciary of the Senate, concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.
(2) Each report under the first sentence of paragraph (1) shall include a description of—
(A) the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter where the nature and location of each facility or place at which the electronic surveillance will be directed is unknown;
(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during the period covered by such report; and
(C) the total number of emergency employments of electronic surveillance under section 1805(e) of this title and the total number of subsequent orders approving or denying such electronic surveillance.
(b) On or before one year after October 25, 1978, and on the same day each year for four years thereafter, the Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence shall report respectively to the House of Representatives and the Senate, concerning the implementation of this chapter. Said reports shall include but not be limited to an analysis and recommendations concerning whether this chapter should be (1) amended, (2) repealed, or (3) permitted to continue in effect without amendment.
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code, shall constitute an additional exclusive means for the purpose of subsection (a).
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "'international terrorism", "sabotage", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", "weapon of mass destruction", and "State" shall have the same meanings as in section 1801 of this title, except as specifically provided by this subchapter.
(2) "Aggrieved person" means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
(3) "Foreign Intelligence Surveillance Court" means the court established by section 1803(a) of this title.
(4) "Minimization procedures" with respect to physical search, means—
(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 1801(e)(1) of this title, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 1822(a) of this title, procedures that require that no information, material, or property of a United States person shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1824 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(5) "Physical search" means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) "electronic surveillance", as defined in section 1801(f) of this title, or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, 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 1801(f) of this title.
(a) Presidential authorization
(1) Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if—
(A) the Attorney General certifies in writing under oath that—
(i) the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers (as defined in section 1801(a)(1), (2), or (3) of this title);
(ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person; and
(iii) the proposed minimization procedures with respect to such physical search meet the definition of minimization procedures under paragraphs (1) through (4) of section 1821(4) of this title; and
(B) the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days before their effective date, unless the Attorney General determines that immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) A physical search authorized by this subsection may be conducted only in accordance with the certification and minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 1826 of this title.
(3) The Attorney General shall immediately transmit under seal to the Foreign Intelligence Surveillance Court a copy of the certification. Such certification shall be maintained under security measures established by the Chief Justice of the United States with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the physical search is made under section 1821(4) of this title and section 1823 of this title; or
(B) the certification is necessary to determine the legality of the physical search under section 1825(g) of this title.
(4)(A) With respect to physical searches authorized by this subsection, the Attorney General may direct a specified landlord, custodian, or other specified person to—
(i) furnish all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search; and
(ii) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain.
(B) The Government shall compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid.
(b) Application for order; authorization
Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court. Notwithstanding any other provision of law, a judge of the court to whom application is made may grant an order in accordance with section 1824 of this title approving a physical search in the United States of the premises, property, information, or material of a foreign power or an agent of a foreign power for the purpose of collecting foreign intelligence information.
(c) Jurisdiction of Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this subchapter, except that no judge (except when sitting en banc) shall hear the same application which has been denied previously by another judge designated under section 1803(a) of this title. If any judge so designated denies an application for an order authorizing a physical search under this subchapter, such judge shall provide immediately for the record a written statement of each reason for such decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established under section 1803(b) of this title.
(d) Court of review; record; transmittal to Supreme Court
The court of review established under section 1803(b) of this title shall have jurisdiction to review the denial of any application made under this subchapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(e) Expeditious conduct of proceedings; security measures for maintenance of records
Judicial proceedings under this subchapter shall be concluded as expeditiously as possible. The record of proceedings under this subchapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of Central Intelligence.
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving a physical search under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements for such application as set forth in this subchapter. Each application shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the target of the search, and a <del>detailed</del> description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
(3) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that—
(A) the target of the physical search is a foreign power or an agent of a foreign power;
(B) the premises or property to be searched contains foreign intelligence information; and
(C) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the search is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D);
(7) where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information; and
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1824 of this title.
(d) Requirements regarding certain applications
(1)(A) Upon written request of the Director of the Federal Bureau of
Investigation, the Secretary of Defense, the Secretary of State, or the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to
approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
(a) Necessary findings
Upon an application made pursuant to section 1823 of this title, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that—
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power;
(3) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and
(4) the application which has been filed contains all statements and certifications required by section 1823 of this title, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1823(a)(6)(e) of this title and any other information furnished under section 1823(c) of this title.
(b) Probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
An order approving a physical search under this section shall—
(1) specify—
(A) the identity, if known, or a description of the target of the physical search;
(B) the nature and location of each of the premises or property to be searched;
(C) the type of information, material, or property to be seized, altered, or reproduced;
(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and
(2) direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and
(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(d) Duration of order; extensions; review of circumstances under which information was acquired, retained, or disseminated
(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of section 1801(a) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this Act for a surveillance targeted against an agent of a foreign power, who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this chapter for a physical search targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a) of this title, or against a foreign power, as defined in section 1801(a)(4) of this title, that is not a United States person, or an agent of as foreign power, who is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period.
(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Emergency orders
(1) Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the attorney general—
(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;
(B) reasonably determines that the factual basis for issuance of an order under this title to approve such physical search exists;
(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and
(D) makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.
(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 1803.
(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Retention of applications and orders
Applications made and orders granted under this subchapter shall be retained for a period of at least 10 years from the date of the application.
(a) Compliance with minimization procedures; lawful purposes
Information acquired from a physical search conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No information acquired from a physical search pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Notice of search and identification of property seized, altered, or reproduced
Where a physical search authorized and conducted pursuant to section 1824 of this title involves the residence of a United States person, and, at any time after the search the Attorney General determines there is no national security interest in continuing to maintain the secrecy of the search, the Attorney shall provide notice to the United States person whose residence was searched of the fact of the search conducted pursuant to this chapter and shall identify any property of such person seized, altered, or reproduced during such search.
(c) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(d) Notification by United States
Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search pursuant to the authority of this subchapter, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(e) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof against an aggrieved person any information obtained or derived from a physical search pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(f) Motion to suppress
(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other 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 evidence obtained or derived from such search on the grounds that—
(A) the information was unlawfully acquired; or
(B) the physical search was not made in conformity with an order of authorization or approval.
(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(g) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (d) or (e) of this section, or whenever a motion is made pursuant to subsection (f) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
(h) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (g) of this section determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(i) Finality of orders
Orders granting motions or requests under subsection (h) of this section, decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(j) Notification of emergency execution of physical search; contents; postponement, suspension or elimination
(1) If an emergency execution of a physical search is authorized under section 1824(d) of this title and a subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is in the interests of justice to serve, notice of—
(A) the fact of the application;
(B) the period of the search; and
(C) the fact that during the period information was or was not obtained.
(2) On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k)(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision to coordinate efforts to investigate or protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1803(a)(6) or the entry of an order under section 1804.
On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the Senate, concerning all physical searches conducted pursuant to this subchapter. On a semiannual basis the Attorney General shall also provide to those committees and the Committee on the Judiciary of the House of Representatives a report setting forth with respect to the preceding six-month period—
(1) the total number of applications made for orders approving physical searches under this subchapter;
(2) the total number of such orders either granted, modified, or denied;
(3) the number of physical searches which involved searches of the residences, offices, or personal property of United States persons, and the number of occasions, if any, where the Attorney General provided notice pursuant to section 1825(b) of this title; and
(4) the total number of emergency physical searches authorized by the Attorney General under section 1824(e) of this title and the total number of subsequent orders approving or denying such physical searches.
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) under color of law for the purpose of obtaining foreign intelligence information, executes a physical search within the United States except as authorized by statute; or
(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Fine or imprisonment
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A), respectively, of this title, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 1827 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(1) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(2) punitive damages; and
(3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "international terrorism", "foreign intelligence information", "Attorney General", "United States person", "United States', "person", and "State" shall have the same meanings as in section 1801 of this title.
(2) The terms 'pen register' and 'trap and trace device' have the meanings given such terms in section 3127 of Title 18.
(3) The term 'aggrieved person' means any person—
(A) whose telephone line was subject to the installation or use of a pen register or trap and trace device authorized by this subchapter of this chapter; or
(B) whose communication instrument or device was subject to the use of a pen register or trap and trace device authorized by this subchapter to capture incoming electronic or other communications impulses.
(a) Application for authorization or approval
(1) Notwithstanding any other provision of law, the Attorney General or a designated attorney for the Government may make an application for an order or an extension of an order authorizing or approving the installation and use of a pen register or trap and trace device for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution which is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order.
(2) The authority under paragraph (1) is in addition to the authority under subchapter I of this chapter to conduct the electronic surveillance referred to in that paragraph.
(b) Form of application; recipient
Each application under this section shall be in writing under oath or affirmation to—
(1) a judge of the court established by section 1803(a) of this title; or
(2) a United States Magistrate Judge under chapter 43 of Title 28, who is publicly designated by the Chief Justice of the United States to have the power to hear applications for and grant orders approving the installation and use of a pen register or trap and trace device on behalf of a judge of that court.
(c) Executive approval; contents of application
Each application under this section shall require the approval of the Attorney General, or a designated attorney for the Government, and shall include—
(1) the identity of the Federal officer seeking to use the pen register or trap and trace device covered by the application; and
(2) a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(3) Repealed. P.L. 107-56, Title II, § 214(a)(3), Oct. 26, 2001, 115 Stat. 286.
(d) Ex parte judicial order of approval
(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the installation and use of a pen register or trap and trace device if the judge finds that the application satisfies the requirements of this section.
(2) An order issued under this section—
(A) shall specify—
(i) the identity, if known, of the person who is the subject of the investigation;
(ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and
(iii) the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order;
(B) shall direct that—
(i) upon request of the applicant, the provider of a wire or electronic communication service, landlord, custodian, or other person shall furnish any information, facilities, or technical assistance necessary to accomplish the installation and operation of the pen register or trap and trace device in such a manner as will protect its secrecy and produce a minimum amount of interference with the services that such provider, landlord, custodian, or other person is providing the person concerned;
(ii) such provider, landlord, custodian, or other person—
(I) shall not disclose the existence of the investigation or of the pen register or trap and trace device to any person unless or until ordered by the court; and
(II) shall maintain, under security procedures approved by the Attorney General and the Director of National Intelligence pursuant to section 1805(b)(2)(C) of this title, any records concerning the pen register or trap and trace device or the aid furnished; and
(iii) the applicant shall compensate such provider, landlord, custodian, or other person for reasonable expenses incurred by such provider, landlord, custodian, or other person in providing such information, facilities, or technical assistance; and
(C) shall direct that, upon the request of the applicant, the provider of a wire or electronic communication service shall disclose to the Federal officer using the pen register or trap and trace device covered by the order—
(i) in the case of the customer or subscriber using the service covered by the order (for the period specified by the order).—
(I) the name of the customer or subscriber;
(II) the address of the customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information;
(IV) the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber;
(V) in the case of a provider of local or long distance telephone service, any local or long distance telephone records of the customer or subscriber;
(VI) if applicable, any records reflecting period of usage (or sessions) by the customer or subscriber; and
(VII) any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and
(ii) if available, with respect to any customer or subscriber of incoming or outgoing communications to or from the service covered by the order—
(I) the name of such customer or subscriber;
(II) the address of such customer or subscriber;
(III) the telephone or instrument number, or other subscriber number or identifier, of such customer or subscriber, including any temporarily assigned network address or associated routing or transmission information; and
(IV) the length of the provision of service by such provider to such customer or subscriber and the types of services utilized by such customer or subscriber.
(e) Time limitation
(1) Except as provided in paragraph (2), an order issued under this section shall authorize the installation and use of a pen register or trap and trace device for a period not to exceed 90 days. Extensions of such an order may be granted, but only upon an application for an order under this section and upon the judicial finding required by subsection (d) of this section. The period of extension shall be for a period not to exceed 90 days.
(2) In the case of an application under subsection (c) of this section where the applicant has certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, an order, or an extension of an order, under this section may be for a period not to exceed one year.
(f) Cause of action barred
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance under subsection (d) of this section in accordance with the terms of an order issued under this section.
(g) Furnishing of results
Unless otherwise ordered by the judge, the results of a pen register or trap and trace device shall be furnished at reasonable intervals during regular business hours for the duration of the order to the authorized Government official or officials.
(a) Notwithstanding any other provision of this subchapter, when the Attorney General makes a determination described in subsection (b), the Attorney General may authorize the installation and use of a pen register or trap and trace device on an emergency basis to gather foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution if—
(1) a judge referred to in section 1842(b) of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to install and use the pen register or trap and trace device, as the case may be, on an emergency basis; and
[Sec. 108(1)] (2) an application in accordance with section 1842(a)(1) of this title is made to such judge as soon as practicable, but not more than 7 days, after the Attorney General authorizes the installation and use of the pen register or trap and trace device, as the case may be, under this section.
(b) A determination under this subsection is a reasonable determination by the Attorney General that—
(1) an emergency requires the installation and use of a pen register or trap and trace device to obtain foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution before an order authorizing the installation and use of the pen register or trap and trace device, as the case may be, can with due diligence be obtained under section 1842 of this title; and
(2) the factual basis for issuance of an order under such section 1842(c) of this title to approve the installation and use of the pen register or trap and trace device, as the case may be, exists.
(c)(1) In the absence of an order applied for under subsection (a)(2) approving the installation and use of a pen register or trap and trace device authorized under this section, the installation and use of the pen register or trap and trace device, as the case may be, shall terminate at the earlier of—
(A) when the information sought is obtained;
(B) when the application for the order is denied under section 1842 of this title; or
(C) 7 days after the time of the authorization by the Attorney General.
(2) In the event that an application for an order applied for under subsection (a)(2) is denied, or in any other case where the installation and use of a pen register or trap and trace device under this section is terminated and no order under section 1842(b)(2) of this title is issued approving the installation and use of the pen register or trap and trace device, as the case may be, no information obtained or evidence derived from the use of the pen register or trap and trace device, as the case may be, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from the use of the pen register or trap and trace device, as the case may be, shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order under this subchapter [50 U.S.C. 1841 et seq.] to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by Congress.
(a)(1) Information acquired from the use of a pen register or trap and trace device installed pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the provisions of this section.
(2) No information acquired from a pen register or trap and trace device installed and used pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States against an aggrieved person any information obtained or derived from the use of a pen register or trap and trace device pursuant to this subchapter, effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(d) Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the State or political subdivision thereof against an aggrieved person any information obtained or derived from the use of a pen register or trap and trace device pursuant to this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e)(1) Any aggrieved person against whom evidence obtained or derived from the use of a pen register or trap and trace device is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, or a State or political subdivision thereof, may move to suppress the evidence obtained or derived from the use of the pen register or trap and trace device, as the case may be, on the grounds that—
(A) the information was unlawfully acquired; or
(B) the use of the pen register or trap and trace device, as the case may be, was not made in conformity with an order of authorization or approval under this subchapter.
(2) A motion under paragraph (1) shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the aggrieved person concerned was not aware of the grounds of the motion.
(f)(1) Whenever a court or other authority is notified pursuant to subsection (c) or (d), whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to the use of a pen register or trap and trace device authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from the use of a pen register or trap and trace device authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law and if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the use of the pen register or trap and trace device, as the case may be, as may be necessary to determine whether the use of the pen register or trap and trace device, as the case may be, was lawfully authorized and conducted.
(2) In making a determination under paragraph (1), the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the use of the pen register or trap and trace device, as the case may be, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the use of the pen register or trap and trace device, as the case may be.
(g)(1) If the United States district court determines pursuant to subsection (f) that the use of a pen register or trap and trace device was not lawfully authorized or conducted, the court may, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the use of the pen register or trap and trace device, as the case may be, or otherwise grant the motion of the aggrieved person.
(2) If the court determines that the use of the pen register or trap and trace device, as the case may be, was lawfully authorized or conducted, it may deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Orders granting motions or requests under subsection (g), decisions under this section that the use of a pen register or trap and trace device was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the installation and use of a pen register or trap and trace device shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all uses of pen registers and trap and trace devices pursuant to this subchapter.
(b) On a semiannual basis, the Attorney General shall also provide to the committees referred to in subsection (a) of this section and to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period—
(1) the total number of applications made for orders approving the use of pen registers or trap and trace devices under this subchapter;
(2) the total number of such orders either granted, modified, or denied; and
(3) the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under section 1843 of this title, and the total number of subsequent orders approving or denying the installation and use of such pen registers and trap and trace devices.
(a)(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(2) An investigation conducted under this section shall
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.
(b) Each application under this section
(1) shall be made to—
(A) a judge of the court established by section 1803(a) of this title; or
(B) a United States Magistrate Judge under chapter 43 of Title 28, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
(2) shall include—
(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) of this section to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) of this section that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
(c)(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b) of this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) of this section be followed.
(2) An order under this subsection—
(A) shall describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified;
(B) shall include the date on which the tangible things must be provided, which shall allow a reasonable period of time within which the tangible things can be assembled and made available;
(C) shall provide clear and conspicuous notice of the principles and procedures described in subsection (d) of this section;
(D) may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things; and
(E) shall not disclose that such order is issued for purposes of an investigation described in subsection (a) of this section.
(d)(1) No person shall disclose to any other person that the Federal bureau of investigation has sought or obtained tangible things pursuant to an order under this section, other than to
(A) those persons to whom disclosure is necessary to comply with such order;
(B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or
(C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.
(2)(A) A person to whom disclosure is made pursuant to paragraph (1) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as such person.
(B) Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section shall notify such person of the nondisclosure requirements of this subsection.
(C) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under subparagraph (A) or (C) of paragraph (1) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
(f)(1) In this subsection—
(A) the term "production order" means an order to produce any tangible thing under this section; and
(B) the term "nondisclosure order" means an order imposed under subsection (d) of this section.
(2)(A)(i) A person receiving a production order may challenge the legality of that order by
filing a petition with the pool established by section 1803(e)(1) of this title. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (c), with the pool established by section 1803(e)(1) of this title.
(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by section 1803(e)(1) of this title. Not later than 72 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the petition. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the production order or nondisclosure order. If the assigned judge determines the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established under section 1803(e)(2) of this title.
(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this subsection. Upon the request of the Government, any order setting aside a nondisclosure order shall be stayed pending review pursuant to paragraph (3).
(B) A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the production order, the judge shall immediately affirm such order, and order the recipient to comply therewith.
(C)(i) A judge considering a petition to modify or set aside a nondisclosure order may grant
such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counter terrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.
(ii) If, upon filing of such a petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith.
(iii) If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order shall be precluded for a period of 1 year from filing another such petition with respect to such nondisclosure order.
(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.
(3) A petition for review of a decision under paragraph (2) to affirm, modify, or set aside an order by the Government or any person receiving such order shall be made to the court of review established under section 1803(b) of this title, which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition by the Government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.
(5) All petitions under this subsection shall be filed under seal. In any proceedings under this subsection, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions thereof, which may include classified information.
(g) Minimization procedures
(1) In general
Not later than 180 days after March 9, 2006, the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this subchapter.
(2) Defined
In this section, the term "minimization procedures" means—
(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 1801(e)(1) of this title, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.
(h) Use of information
Information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures adopted pursuant to subsection (g) of this section. No otherwise privileged information acquired from tangible things received by the Federal Bureau of Investigation in accordance with the provisions of this subchapter shall lose its privileged character. No information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
[P.L. 109-177, Sec. 102(b) as amended by P.L. 112-14, Sec.2(a)] (1) In General.—Effective June 1, 2015, the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 1861[and] 1862 read as they read on October 25, 2001.
(2) Exception.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which the provisions cease to have effect, such provisions shall continued in effect.
On October 25, 2001, section 1861 read:
Sec. 1861. Definitions
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "foreign intelligence information", "international terrorism", and "Attorney General" shall have the same meanings as in section 1801 of this title.
(2) The term "common carrier" means any person or entity transporting people or property by land, rail, water, or air for compensation.
(3) The term "physical storage facility" means any business or entity that provides space for the storage of goods or materials, or services related to the storage of goods or materials, to the public or any segment thereof.
(4) The term "public accommodation facility" means any inn, hotel, motel, or other establishment that provides lodging to transient guests.
(5) The term "vehicle rental facility" means any person or entity that provides vehicles for rent, lease, loan, or other similar use to the public or any segment thereof.
On October 25, 2001, section 1862 read:
Sec. 1862. Access to certain business records for foreign intelligence and international terrorism investigations
(a) Application for authorization
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an investigation concerning international terrorism which investigation is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order.
(b) Recipient and contents of application
Each application under this section -
(1) shall be made to -
(A) a judge of the court established by section 1803(a) of this title; or
(B) a United States Magistrate Judge under chapter 43 of title 28 who is publicly designated by the
Chief Justice of the United States to have the power to hear applications and grant orders for the release of records under this section on behalf of a judge of that court; and
(2) shall specify that -
(A) the records concerned are sought for an investigation described in subsection (a); and
(B) there are specific and articulable facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign power.
(c) Ex parte judicial order of approval
(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the requirements of this section.
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.
(d) Compliance; nondisclosure
(1) Any common carrier, public accommodation facility, physical storage facility, or vehicle rental facility shall comply with an order under subsection (c).
(2) No common carrier, public accommodation facility, physical storage facility, or vehicle rental facility, or officer, employee, or agent thereof, shall disclose to any person (other than those officers, agents, or employees of such common carrier, public accommodation facility, physical storage facility, or vehicle rental facility necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this section) that the Federal Bureau of Investigation has sought or obtained records pursuant to an order under this section.
[P.L. 109-177, Sec. 102(b) as amended by P.L. 112-14, Sec.2(a)] (1) In General.—Effective June 1, 2015, the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 1861[and] 1862 read as they read on October 25, 2001.
(a) On a annual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate concerning all requests for the production of tangible things under section 1861 of this title.
(b) In April of each year, the Attorney General shall submit to the House and Senate Committees on the Judiciary and the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence a report setting forth with respect to the preceding calendar year—
(1) the total number of applications made for orders approving requests for the production of tangible things under section 1861 of this title;
(2) the total number of such orders either granted, modified, or denied; and
(3) the number of such orders either granted, modified, or denied for the production of each of the following:
(A) Library circulation records, library patron lists, book sales records, or book customer lists.
(B) Firearms sales records.
(C) Tax return records.
(D) Educational records.
(E) Medical records containing information that would identify a person.
(c)(1) In April of each year, the Attorney General shall submit to Congress a report setting forth with respect to the preceding year—
(A) the total number of applications made for orders approving requests for the production of tangible things under section 1861 of this title; and
(B) the total number of such orders either granted, modified, or denied.
(2) Each report under this subsection shall be submitted in unclassified form.
(a) Report
On a semiannual basis, the Attorney General shall submit to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate, in a manner consistent with the protection of the national security, a report setting forth with respect to the preceding 6-month period—
(1) the aggregate number of persons targeted for orders issued under this chapter, including a breakdown of those targeted for—
(A) electronic surveillance under section 1805 of this title;
(B) physical searches under section 1824 of this title;
(C) pen registers under section 1842 of this title;
(D) access to records under section 1861 of this title;
(E) acquisitions under section 1881b; and
(F) acquisitions under section 1881c.
[P.L. 110-261, Sec. 403(b)(2)(B)] Effective December 31, 2017 . . .(B) except as provided in section 404, section 601(a)(1) of such Act (50 U.S.C. 1871(a)(1)[above in bold italics]) is amended to read as such section read on the day before the date of the enactment of this Act, as follows:
(1)The aggregate number of persons targeted for orders issued under this chapter, including a breakdown of those targeted for—
(A) electronic surveillance under section 1805 of this title;
(B) physical searches under section 1824 of this title;
(C) pen register under section 1842 of this title; and
(D) access to records under section 1861 of this title;
(2) the number of individuals covered by an order issued pursuant to section 1801(b)(1)(c) of this title;
(3) the number of times that the Attorney General has authorized that information obtained under this chapter may be used in a criminal proceeding or any information derived therefrom may be used in a criminal proceeding;
(4) a summary of significant legal interpretations of this chapter involving matters before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, including interpretations presented in applications or pleadings filed with the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review by the Department of Justice; and
(5) copies of all decisions, orders or opinions of the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of the provisions of this chapter.
(b) Frequency
The first report under this section shall be submitted not later than 6 months after December 17, 2004. Subsequent reports under this section shall be submitted semi-annually thereafter.
(c) Submissions to Congress.—The Attorney General shall submit to the committees of Congress referred to in subsection (a)—
(1) a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued; and
(2) a copy of each such decision, order, or opinion, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, that was issued during the 5-year period ending on the date of the enactment of the FISA Amendments Act of 2008 and not previously submitted in a report under subsection (a).
(d) Protection of national security.—The Attorney General, in consultation with the Director of National Intelligence, may authorize redactions of materials described in subsection (c) that are provided to the committees of Congress referred to in subsection (a), if such redactions are necessary to protect the national security of the United States and are limited to sensitive sources and methods information or the identities of targets.
(e) Definitions.—In this section:
(1) Foreign intelligence surveillance court.—The term 'Foreign Intelligence Surveillance Court' means the court established under section 103(a).
(2) Foreign intelligence surveillance court of review.—The term 'Foreign Intelligence Surveillance Court of Review' means the court established under section 103(b).
[P.L. 110-261, Sec. 404(b)(4)] Reporting requirements.—
(A) Continued applicability.—Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 101(c)(2), and sections 1881a(l) and 1881f of such Act, as added by section 101(a), shall continue to apply until the date that the certification described in subparagraph (B) is submitted.
(B) Certification.—The certification described in this subparagraph is a certification—
(i) made by the Attorney General;
(ii) submitted to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on the Judiciary of the Senate and the House of Representatives;
(iii) that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), after the date of such certification; and
(iv) that states that the information required to be included in a review, assessment, or report under section 601 of such Act, as amended by section 101(c), or 1881a(l) or 1881f of such Act, as added by section 101(a), relating to any acquisition conducted under title VII of such Act, as amended by section 101(a), has been included in a review, assessment, or report under such section 1871, 1881b(l), or 1881f.
[P.L. 110-261, Sec. 403(b)(1)] Except as provided in section 404, effective December 31, 2017, title VI of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), [50 U.S.C. 1881 to 1881g] ]is repealed.
[P.L. 110-261, Sec. 404(b)] Transition procedures for FISA Amendments Act of 2008 Provisions.—
(1) Orders in effect on December 31, 2017.—Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a) [50 U.S.C. 1881-1881g], shall continue in effect until the date of the expiration of such order, authorization, or directive.
(2) Applicability of Title VII of FISA to continued orders, authorizations, directives.—Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with respect to any order, authorization, or directive referred to in paragraph (1), title VII of such Act, as amended by section 101(a) [50 U.S.C. 1881-1881g], shall continue to apply until the later of—(A) the expiration of such order, authorization, or directive; or (B) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
(a) In General.—The terms "agent of a foreign power", "Attorney General", "contents", "electronic surveillance", "foreign intelligence information", "foreign power", "person", "United States", and "United States person" have the meanings given such terms in section 101, except as specifically provided in this title.
(b) Additional Definitions.—
(1) Congressional Intelligence Committees.—The term "congressional intelligence committees" means—
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the House of Representatives.
(2) Foreign Intelligence Surveillance Court; Court.—The terms "Foreign Intelligence Surveillance Court" and "Court" mean the court established under section 103(a).
(3) Foreign Intelligence Surveillance Court of Review; Court of Review.—The terms "Foreign Intelligence Surveillance Court of Review" and "Court of Review" mean the court established under section 103(b).
(4) Electronic Communication Service Provider.—The term "electronic communication service provider" means—
(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code;
(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored; or
(E) an officer, employee, or agent of an entity described in subparagraph (A), (B), (c), or (D).
(5) Intelligence Community.—The term "intelligence community" has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(a) Authorization.—Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.
(b) Limitations.—An acquisition authorized under subsection (a)—
(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
(c) Conduct of acquisition.—
(1) In General.—An acquisition authorized under subsection (a) shall be conducted only in accordance with—
(A) the targeting and minimization procedures adopted in accordance with subsections (d) and (e); and
(B) upon submission of a certification in accordance with subsection (g), such certification.
(2) Determination.—A determination under this paragraph and for purposes of subsection (a) is a determination by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subsection (i)(3) prior to the implementation of such authorization.
(3) Timing of determination.—The Attorney General and the Director of National Intelligence may make the determination under paragraph (2)—
(A) before the submission of a certification in accordance with subsection (g); or
(B) by amending a certification pursuant to subsection (i)(1)(c) at any time during which judicial review under subsection (i) of such certification is pending.
(4) Construction.—Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States.
(d) Targeting Procedures.—
(1) Requirement to adopt.—The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—
(A) ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
(B) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
(2) Judicial review.—The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
(e) Minimization Procedures.—
(1) Requirement to adopt.—The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
(2) Judicial review.—The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
(f) Guidelines for compliance with limitations.—
(1) Requirement to adopt.—The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure—
(A) compliance with the limitations in subsection (b); and
(B) that an application for a court order is filed as required by this Act.
(2) Submission of guidelines.—The Attorney General shall provide the guidelines adopted in accordance with paragraph (1) to—
(A) the congressional intelligence committees;
(B) the Committees on the Judiciary of the Senate and the House of Representatives; and
(C) the Foreign Intelligence Surveillance Court.
(g) Certification.—
(1) In General.—
(A) Requirement.—Subject to subparagraph (B), prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall provide to the Foreign Intelligence Surveillance Court a written certification and any supporting affidavit, under oath and under seal, in accordance with this subsection.
(B) Exception.—If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.
(2) Requirements.—A certification made under this subsection shall.—
(A) attest that—
(i) there are procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to—
(I) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
(II) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;
(ii) the minimization procedures to be used with respect to such acquisition—
(I) meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and
(II) have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court;
(iii) guidelines have been adopted in accordance with subsection (f) to ensure compliance with the limitations in subsection (b) and to ensure that an application for a court order is filed as required by this Act;
(iv) the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;
(v) a significant purpose of the acquisition is to obtain foreign intelligence information;
(vi) the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and
(vii) the acquisition complies with the limitations in subsection (b);
(B) include the procedures adopted in accordance with subsections (d) and (e);
(C) be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is—
(i) appointed by the President, by and with the advice and consent of the Senate; or
(ii) the head of an element of the intelligence community;
(D) include—
(i) an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or
(ii) if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; and
(E) if the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2), include a statement that such determination has been made.
(3) Change in effective date.—The Attorney General and the Director of National Intelligence may advance or delay the effective date referred to in paragraph (2)(D) by submitting an amended certification in accordance with subsection (i)(1)(c) to the Foreign Intelligence Surveillance Court for review pursuant to subsection (i).
(4) Limitation—A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted.
(5) Maintenance of certification.—The Attorney General or a designee of the Attorney General shall maintain a copy of a certification made under this subsection.
(6) Review.—A certification submitted in accordance with this subsection shall be subject to judicial review pursuant to subsection (i).
(h) Directives and judicial review of directives.—
(1) Authority.—With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—
(A) immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and
(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.
(2) Compensation.—The Government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).
(3) Release from liability.—No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).
(4) Challenging of directives.—
(A) Authority to Challenge.—An electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition to modify or set aside such directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.
(B) Assignment.—The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.
(C) Standards for review.—A judge considering a petition filed under subparagraph (A) may grant such petition only if the judge finds that the directive does not meet the requirements of this section, or is otherwise unlawful.
(D) Procedures for initial review.—A judge shall conduct an initial review of a petition filed under subparagraph (A) not later than 5 days after being assigned such petition. If the judge determines that such petition does not consist of claims, defenses, or other legal contentions that are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of such petition and order the recipient to comply with the directive or any part of it. Upon making a determination under this subparagraph or promptly thereafter, the judge shall provide a written statement for the record of the reasons for such determination.
(E) Procedures for plenary review.—If a judge determines that a petition filed under subparagraph (A) requires plenary review, the judge shall affirm, modify, or set aside the directive that is the subject of such petition not later than 30 days after being assigned such petition. If the judge does not set aside the directive, the judge shall immediately affirm or affirm with modifications the directive, and order the recipient to comply with the directive in its entirety or as modified. The judge shall provide a written statement for the record of the reasons for a determination under this subparagraph.
(F) Continued effect.—Any directive not explicitly modified or set aside under this paragraph shall remain in full effect.
(G) Contempt of court.—Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.
(5) Enforcement of directives.—
(A) Order to compel.—If an electronic communication service provider fails to comply with a directive issued pursuant to paragraph (1), the Attorney General may file a petition for an order to compel the electronic communication service provider to comply with the directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.
(B) Assignment.—The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.
(C) Procedures for review.—A judge considering a petition filed under subparagraph (A) shall, not later than 30 days after being assigned such petition, issue an order requiring the electronic communication service provider to comply with the directive or any part of it, as issued or as modified, if the judge finds that the directive meets the requirements of this section and is otherwise lawful. The judge shall provide a written statement for the record of the reasons for a determination under this paragraph.
(D) Contempt of court.—Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.
(E) Process.—Any process under this paragraph may be served in any judicial district in which the electronic communication service provider may be found.
(6) Appeal.—
(A) Appeal to the court of review.—The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition with the Foreign Intelligence Surveillance Court of Review for review of a decision issued pursuant to paragraph (4) or (5). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this subparagraph.
(B) Certiorari to the Supreme Court.—The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(i) Judicial review of certifications and procedures.—
(1) In General.—
(A) Review by the Foreign Intelligence Surveillance Court.—The Foreign Intelligence Surveillance Court shall have jurisdiction to review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e), and amendments to such certification or such procedures.
(B) Time period for review.—The Court shall review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and shall complete such review and issue an order under paragraph (3) not later than 30 days after the date on which such certification and such procedures are submitted.
(C) Amendments.—The Attorney General and the Director of National Intelligence may amend a certification submitted in accordance with subsection (g) or the targeting and minimization procedures adopted in accordance with subsections (d) and (e) as necessary at any time, including if the Court is conducting or has completed review of such certification or such procedures, and shall submit the amended certification or amended procedures to the Court not later than 7 days after amending such certification or such procedures. The Court shall review any amendment under this subparagraph under the procedures set forth in this subsection. The Attorney General and the Director of National Intelligence may authorize the use of an amended certification or amended procedures pending the Court's review of such amended certification or amended procedures.
(2) Review.—The Court shall review the following:
(A) Certification.—A certification submitted in accordance with subsection (g) to determine whether the certification contains all the required elements.
(B) Targeting procedures.—The targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to—
(i) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
(ii) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
(C) Minimization procedures.—The minimization procedures adopted in accordance with subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4), as appropriate.
(3) Orders.—
(A) Approval.—If the Court finds that a certification submitted in accordance with subsection (g) contains all the required elements and that the targeting and minimization procedures adopted in accordance with subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the certification and the use, or continued use in the case of an acquisition authorized pursuant to a determination under subsection (c)(2), of the procedures for the acquisition.
(B) Correction of deficiencies.—If the Court finds that a certification submitted in accordance with subsection (g) does not contain all the required elements, or that the procedures adopted in accordance with subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government's election and to the extent required by the Court's order—
(i) correct any deficiency identified by the Court's order not later than 30 days after the date on which the Court issues the order; or
(ii) cease, or not begin, the implementation of the authorization for which such certification was submitted.
(C) Requirement for written statement.—In support of an order under this subsection, the Court shall provide, simultaneously with the order, for the record a written statement of the reasons for the order.
(4) Appeal.—
(A) Appeal to the court of review.—The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order under this subsection. The Court of Review shall have jurisdiction to consider such petition. For any decision under this subparagraph affirming, reversing, or modifying an order of the Foreign Intelligence Surveillance Court, the Court of Review shall provide for the record a written statement of the reasons for the decision.
(B) Continuation of acquisition pending rehearing or appeal.—Any acquisition affected by an order under paragraph (3)(B) may continue—
(i) during the pendency of any rehearing of the order by the Court en banc; and
(ii) if the Government files a petition for review of an order under this section, until the Court of Review enters an order under subparagraph (c).
(C) Implementation pending appeal.—Not later than 60 days after the filing of a petition for review of an order under paragraph (3)(B) directing the correction of a deficiency, the Court of Review shall determine, and enter a corresponding order regarding, whether all or any part of the correction order, as issued or modified, shall be implemented during the pendency of the review.
(D) Certiorari to the Supreme Court.—The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(5) Schedule.—
(A) Reauthorization of authorizations in effect.—If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Court the certification prepared in accordance with subsection (g) and the procedures adopted in accordance with subsections (d) and (e) at least 30 days prior to the expiration of such authorization.
(B) Reauthorization of orders, authorizations , and directives.—If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a) by filing a certification pursuant to subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a), until the Court issues an order with respect to such certification under paragraph (3) at which time the provisions of that paragraph and paragraph (4) shall apply with respect to such certification.
(j) Judicial proceedings.—
(1) Expedited judicial proceedings.—Judicial proceedings under this section shall be conducted as expeditiously as possible.
(2) Time limits.—A time limit for a judicial decision in this section shall apply unless the Court, the Court of Review, or any judge of either the Court or the Court of Review, by order for reasons stated, extends that time as necessary for good cause in a manner consistent with national security.
(k) Maintenance and security of records and proceedings.—
(1) Standards.—The Foreign Intelligence Surveillance Court shall maintain a record of a proceeding under this section, including petitions, appeals, orders, and statements of reasons for a decision, under security measures adopted by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.
(2) Filing and review.—All petitions under this section shall be filed under seal. In any proceedings under this section, the Court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.
(3) Retention of records.—The Attorney General and the Director of National Intelligence shall retain a directive or an order issued under this section for a period of not less than 10 years from the date on which such directive or such order is issued.
(l) Assessments and reviews.—
(1) Semiannual assessment.—Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—
(A) the Foreign Intelligence Surveillance Court; and
(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—
(i) the congressional intelligence committees; and
(ii) the Committees on the Judiciary of the House of Representatives and the Senate.
(2) Agency assessment.—The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General—
(A) are authorized to review compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f);
(B) with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;
(C) with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and
(D) shall provide each such review to—
(i) the Attorney General;
(ii) the Director of National Intelligence; and
(iii) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—
(I) the congressional intelligence committees; and
(II) the Committees on the Judiciary of the House of Representatives and the Senate.
(3) Annual review.—
(A) Requirement to conduct.—The head of each element of the intelligence community conducting an acquisition authorized under subsection (a) shall conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual review shall provide, with respect to acquisitions authorized under subsection (a)—
(i) an accounting of the number of disseminated intelligence reports containing a reference to a United States-person identity;
(ii) an accounting of the number of United States-person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting;
(iii) the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and
(iv) a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under subsection (a) acquire the communications of United States persons, and the results of any such assessment.
(B) Use of review.—The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall use each such review to evaluate the adequacy of the minimization procedures utilized by such element and, as appropriate, the application of the minimization procedures to a particular acquisition authorized under subsection (a).
(C) Provision of review.—The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall provide such review to—
(i) the Foreign Intelligence Surveillance Court;
(ii) the Attorney General;
(iii) the Director of National Intelligence; and
(iv) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—
(I) the congressional intelligence committees; and
(II) the Committees on the Judiciary of the House of Representatives and the Senate.
[P.L. 110-261, Sec. 404(b)(3)] [Challenge of directives; protection from liability; use of information.—
Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)—
(A) section 1803(e) of such Act, as amended by section 403(a)(1)(B)(ii), shall continue to apply with respect to any directive issued pursuant to section 1881a(h) of such Act, as added by section 101(a);
(B) section 1881a(h)(3) of such Act (as so added) shall continue to apply with respect to any directive issued pursuant to section 1881a(h) of such Act (as so added);
(C) section 1881b(e) of such Act (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section;
(D) section 18881e of such Act (as so added) shall continue to apply to an acquisition conducted under section 1881a or 1881b of such Act (as so added).]
(a) Jurisdiction of the foreign intelligence surveillance court.—
(1) In general.—The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.
(2) Limitation.—If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.
(b) Application.—
(1) In general.—each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include—
(A) the identity of the Federal officer making the application;
(B) the identity, if known, or a description of the United States person who is the target of the acquisition;
(C) a statement of the facts and circumstances relied upon to justify the applicant's belief that the United States person who is the target of the acquisition is—
(i) a person reasonably believed to be located outside the United States; and
(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;
(D) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;
(E) a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;
(F) a certification made by the Attorney General or an official specified in section 104(a)(6) that—
(i) the certifying official deems the information sought to be foreign intelligence information;
(ii) a significant purpose of the acquisition is to obtain foreign intelligence information;
(iii) such information cannot reasonably be obtained by normal investigative techniques;
(iv) designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and
(v) includes a statement of the basis for the certification that—
(I) the information sought is the type of foreign intelligence information designated; and
(II) such information cannot reasonably be obtained by normal investigative techniques;
(G) a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;
(H) the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;
(I) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and
(J) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.
(2) Other requirements of the attorney general.—The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(3) Other requirements of the judge.—The judge may require the applicant to furnish such other information as may be necessary to make the findings required by subsection (c)(1).
(c) Order.—
(1) Findings.—Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that—
(A) the application has been made by a Federal officer and approved by the Attorney General;
(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—
(i) a person reasonably believed to be located outside the United States; and
(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;
(C) the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and
(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).
(2) Probable cause.—In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(3) Review.—
(A) Limitation of review.—Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1).
(B) Review of probable cause.—If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause under paragraph (1)(B), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).
(C) Review of minimization procedures.—If the judge determines that the proposed minimization procedures referred to in paragraph (1)(c) do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).
(D) Review of certification.—If the judge determines that an application pursuant to subsection (b) does not contain all of the required elements, or that the certification or certifications are clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).
(4) Specifications.—An order approving an acquisition under this subsection shall specify—
(A) the identity, if known, or a description of the United States person who is the target of the acquisition identified or described in the application pursuant to subsection (b)(1)(B);
(B) if provided in the application pursuant to subsection (b)(1)(H), the nature and location of each of the facilities or places at which the acquisition will be directed;
(C) the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition;
(D) a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition; and
(E) the period of time during which the acquisition is approved.
(5) Directives.—An order approving an acquisition under this subsection shall direct—
(A) that the minimization procedures referred to in paragraph (1)(c), as approved or modified by the Court, be followed;
(B) if applicable, an electronic communication service provider to provide to the Government forthwith all information, facilities, or assistance necessary to accomplish the acquisition authorized under such order in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition;
(C) if applicable, an electronic communication service provider to maintain under security procedures approved by the Attorney General any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain; and
(D) if applicable, that the Government compensate, at the prevailing rate, such electronic communication service provider for providing such information, facilities, or assistance.
(6) Duration.—An order approved under this subsection shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).
(7) Compliance.—At or prior to the end of the period of time for which an acquisition is approved by an order or extension under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(c) by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(d) Emergency authorization.—
(1) Authority for emergency authorization.—notwithstanding any other provision of this Act, if the Attorney General reasonably determines that—
(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and
(B) the factual basis for issuance of an order under this subsection to approve such acquisition exists,
the Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.
(2) Minimization procedures.—If the Attorney General authorizes an acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) for the issuance of a judicial order be followed.
(3) Termination of emergency authorization.—In the absence of a judicial order approving an acquisition under paragraph (1), such acquisition shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) Use of information.—If an application for approval submitted pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisition, no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(e) Release from liability.—No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with an order or request for emergency assistance issued pursuant to subsection (c) or (d), respectively.
[[Sec. 404(b)(3)] Challenge of directives; protection from liability; use of information.—Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) . . (c) section 703(e) of such Act (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section;]
(f) Appeal.—
(1) Appeal to the foreign intelligence surveillance court of review.—The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.
(2) Certiorari to the Supreme Court.—The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(g) Construction.—Except as provided in this section, nothing in this Act shall be construed to require an application for a court order for an acquisition that is targeted in accordance with this section at a United States person reasonably believed to be located outside the United States.
(a) Jurisdiction and scope.—
(1) Jurisdiction.—The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pursuant to subsection (c).
(2) Scope.—No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act.
(3) Limitations.—
(A) Moving or misidentified targets.—If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States during the effective period of such order.
(B) Applicability.—If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 703, the acquisition may only be conducted if authorized under section 703 or in accordance with another provision of this Act other than this section.
(C) Construction.—Nothing in this paragraph shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.
(b) Application.—Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements of such application as set forth in this section and shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific United States person who is the target of the acquisition;
(3) a statement of the facts and circumstances relied upon to justify the applicant's belief that the United States person who is the target of the acquisition is—
(A) a person reasonably believed to be located outside the United States; and
(B) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;
(4) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;
(5) a certification made by the Attorney General, an official specified in section 104(a)(6), or the head of an element of the intelligence community that—
(A) the certifying official deems the information sought to be foreign intelligence information; and
(B) a significant purpose of the acquisition is to obtain foreign intelligence information;
(6) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and
(7) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.
(c) Order—
(1) Findings.—Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court if the Court finds that—
(A) the application has been made by a Federal officer and approved by the Attorney General;
(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—
(i) a person reasonably believed to be located outside the United States; and
(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;
(C) the proposed minimization procedures, with respect to their dissemination provisions, meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and
(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification provided under subsection (b)(5) is not clearly erroneous on the basis of the information furnished under subsection (b).
(2) Probable cause.—In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(3) Review.—
(A) Limitations on review.—Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). The judge shall not have jurisdiction to review the means by which an acquisition under this section may be conducted.
(B) Review of probable cause.—If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause to issue an order under this subsection, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).
(C) Review of minimization procedures.—If the judge determines that the minimization procedures applicable to dissemination of information obtained through an acquisition under this subsection do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).
(D) Scope of review of certification.—If the judge determines that an application under subsection (b) does not contain all the required elements, or that the certification provided under subsection (b)(5) is clearly erroneous on the basis of the information furnished under subsection (b), the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).
(4) Duration.—An order under this paragraph shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).
(5) Compliance.—At or prior to the end of the period of time for which an order or extension is granted under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(c) by reviewing the circumstances under which information concerning United States persons was disseminated, provided that the judge may not inquire into the circumstances relating to the conduct of the acquisition.
(d) Emergency authorization.—
(1) Authority for emergency authorization.—Notwithstanding any other provision of this section, if the Attorney General reasonably determines that—
(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and
(B) the factual basis for the issuance of an order under this section exists,
the Attorney General may authorize the emergency acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General or a designee of the Attorney General at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.
(2) Minimization procedures.—If the Attorney General authorizes an emergency acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(c) be followed.
(3) Termination of emergency authorization.—In the absence of an order under subsection (c), an emergency acquisition under paragraph (1) shall terminate when the information sought is obtained, if the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) Use of information.—If an application submitted to the Court pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order with respect to the target of the acquisition is issued under subsection (c), no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(e) Appeal.—
(1) Appeal to the court of review.—The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.
(2) Certiorari to the supreme court.—The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(a) Joint applications and orders.—If an acquisition targeting a United States person under section 1881b or 1881c is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 1881b(a)(1) or 1881c(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 1881b(b) and 1881c(b), orders under sections 1881b(c) and 1881c(c), as appropriate.
(b) Concurrent authorization.—If an order authorizing electronic surveillance or physical search has been obtained under section 1805 or 1824, the Attorney General may authorize, for the effective period of that order, without an order under section 1881b or 1881c, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States.
(a) Information acquired under section 1881a.—Information acquired from an acquisition conducted under section 1881a shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106, except for the purposes of subsection (j) of such section.
(b) Information acquired under section 1881b.—Information acquired from an acquisition conducted under section 1881b of this title shall be deemed to be information acquired from an electronic surveillance pursuant to title I of this chapter for purposes of section 1806 of this title.
(a) Semiannual report.—Not less frequently than once every 6 months, the Attorney General shall fully inform, in a manner consistent with national security, the congressional intelligence committees and the Committees on the Judiciary of the Senate and the House of Representatives, consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, concerning the implementation of this title.
(b) Content.—Each report under subsection (a) shall include—
(1) with respect to section 1881a of this title—
(A) any certifications submitted in accordance with section 1881a(g) during the reporting period;
(B) with respect to each determination under section 1881a(c)(2), the reasons for exercising the authority under such section;
(C) any directives issued under section 1881a(h) during the reporting period;
(D) a description of the judicial review during the reporting period of such certifications and targeting and minimization procedures adopted in accordance with subsections (d) and (e) of section 1881a and utilized with respect to an acquisition under such section, including a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 1881a;
(E) any actions taken to challenge or enforce a directive under paragraph (4) or (5) of section 1881a(h);
(F) any compliance reviews conducted by the Attorney General or the Director of National Intelligence of acquisitions authorized under section 1881a(a);
(G) a description of any incidents of noncompliance—
(i) with a directive issued by the Attorney General and the Director of National Intelligence under section 1881a(h), including incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive under section 1881a(h); and
(ii) by an element of the intelligence community with procedures and guidelines adopted in accordance with subsections (d), (e), and (f) of section 1881a; and
(H) any procedures implementing section 1881a;
(2) with respect to section 1881b.—
(A) the total number of applications made for orders under section 1881b(b);
(B) the total number of such orders—
(i) granted;
(ii) modified; and
(iii) denied; and
(c) the total number of emergency acquisitions authorized by the Attorney General under section 1881b(d) and the total number of subsequent orders approving or denying such acquisitions; and
(3) with respect to section 1881c—
(A) the total number of applications made for orders under section 1881c(b);
(B) the total number of such orders—
(i) granted;
(ii) modified; and
(iii) denied; and
(C) the total number of emergency acquisitions authorized by the Attorney General under section 1881c(d) and the total number of subsequent orders approving or denying such applications.
Nothing in this title shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other subchapter of this chapter.
In this title:
(1) Assistance.—The term "assistance" means the provision of, or the provision of access to, information (including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.
(2) Civil action.—The term "civil action" includes a covered civil action.
(3) Congressional intelligence committees.—The term "congressional intelligence committees" means—
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the House of Representatives.
(4) Contents.—The term "contents" has the meaning given that term in section 101(n).
(5) Covered civil action.—The term "covered civil action" means a civil action filed in a Federal or State court that—
(A) alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and
(B) seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.
(6) Electronic Communication Service Provider.—The term "electronic communication service provider" means—
(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code;
(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;
(E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (c), or (D); or
(F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (c), (D), or (E).
(7) Intelligence community.—The term "intelligence community" has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(8) Person.—The term "person" means—
(A) an electronic communication service provider; or
(B) a landlord, custodian, or other person who may be authorized or required to furnish assistance pursuant to—
(i) an order of the court established under section 103(a) directing such assistance;
(ii) a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; or
(iii) a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (P.L. 110-55), or 702(h).
(9) State.—The term "State" means any State, political subdivision of a State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider.
(a) Requirement for certification.—Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that.—
(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (P.L. 110-55), or 702(h) directing such assistance;
(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—
(A) in connection with an intelligence activity involving communications that was—
(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful; or
(5) the person did not provide the alleged assistance.
(b) Judicial review.—
(1) Review of certifications.—A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.
(2) Supplemental materials.—In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d)
(c) Limitations on disclosure.—If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall—
(1) review such certification and the supplemental materials in camera and ex parte; and
(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.
(d) Role of the parties.—Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court's written order that would reveal classified information in camera and ex parte and maintain such part under seal.
(e) Nondelegation.—The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.
(f) Appeal.—The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.
(g) Removal.—A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
(h) Relationship to other laws.—Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
(i) Applicability.—This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.
(a) In general.—No State shall have authority to—
(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community;
(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community;
(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or
(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
(b) Suits by the United States.—The United States may bring suit to enforce the provisions of this section.
(c) Jurisdiction.—The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.
(d) Application.—This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.
(a) Semiannual report.—Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.
(b) Content.—Each report made under subsection (a) shall include—
(1) any certifications made under section 1885a;
(2) a description of the judicial review of the certifications made under section 1885a; and
(3) any actions taken to enforce the provisions of section 1885b.
Appendix A. State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic Communications(e)
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Alabama: Ala.Code §§13A-11-30 to 13A-11-37(w/o); |
New Jersey: N.J.Stat.Ann. §§ 2A:156A-2, 2A:156A-3(w/o/e); |
|
Connecticut: Conn.Gen.Stat.Ann. §§53a-187 to 53a-189, 54-41t (w/o); |
Ohio: Ohio Rev.Code §§ 2933.51, 2933.52 (w/o/e); |
|
Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/14-1 to 5/14-3 (w/o/e); Indiana: Ind.Code Ann. §§ 35-33.5-2-1, 35-33.5-5-6(w/o/e); |
South Dakota: S.D.Cod.Laws §§ 23A-35A-1, 23A-35A-20 (w/o); |
|
Maryland: Md.Cts. & Jud.Pro.Code Ann. §§ 10-401, 10-402(w/o/e); |
Virginia: Va.Code §§ 19.2-61, 19.2-62(w/o/e); |
|
Missouri: Mo.Ann.Stat. §§ 542.400 to 542.402 (w/o/e); |
Appendix B. Consent Interceptions Under State Law
|
Alabama: Ala.Code §13A-11-30 (one party consent); Colorado: Colo.Rev.Stat. §§18-9-303, 18-9-304 (one party consent); |
New Jersey: N.J.Stat.Ann. §§2A:156A-4 (one party consent); New Mexico: N.M.Stat.Ann. §§30-12-1 (one party consent); |
|
Georgia: Ga.Code §16-11-66 (one party consent); |
Oklahoma: Okla.Stat.Ann. tit.13 §176.4 (one party consent); |
|
Kansas: Kan.Stat.Ann. §§21-6101 (one party consent); |
South Carolina: S.C. Code Ann. § 17-30-30 (one party consent); |
|
Michigan: Mich.Comp.Laws Ann. §750.539c (proscription regarding eavesdropping on oral conversation: all party consent, except that the proscription does not apply to otherwise lawful activities of police officers); |
Washington: Wash.Rev.Code Ann. §9.73.030 (all parties must consent, except that one party consent is sufficient in certain law enforcement cases); |
|
Montana: Mont.Code Ann. §§45-8-213 (all party consent with an exception for the performance of official duties); |
|
Appendix C. Statutory Civil Liability for Interceptions Under State Law
|
Arizona: Ariz.Rev.Stat.Ann. §12-731; |
Nevada: Nev.Rev.Stat. §200.690; |
|
Florida: Fla.Stat.Ann. §§934.10, 934.27; |
Ohio: Ohio Rev.Code §2933.65; |
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Iowa: Iowa Code Ann. §808B.8; |
Tennessee: Tenn.Code Ann. §39-13-603; |
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Massachusetts: Mass.Gen.Laws Ann. ch.272 §99; |
West Virginia: W.Va.Code §62-1D-12; |
Appendix D. Court Authorized Interception Under State Law
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Alaska: Alaska Stats. §§12.37.010 to 12.37.900; |
North Carolina: N.C.Gen.Stat. §§15A-286 to 15A-298; |
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Delaware: Del.Code tit.11 §§2401 to 2412; |
Pennsylvania: Pa.Stat.Ann. tit.18 §§5701 to 5728 |
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Illinois: Ill.Stat.Ann. ch.725 §§5/108A-1 to 108B-14; |
South Dakota: S.D.Cod.Laws §§23A-35A-1 to 23A-35A-34; |
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Massachusetts: Mass.Gen.Laws Ann. ch.272 §99; |
Washington: Wash.Rev.Code Ann. §§9.73.040 to 9.73.250; |
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Nevada: Nev.Rev.Stat. §§179.410 to 179.515; |
Appendix E. State Statutes Regulating Stored Electronic Communications (SE), Pen Registers (PR) and Trap and Trace Devices (T)
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Alabama: Ala.Code §15-5-40 (SE; PR&T); Alaska: Alaska Stats. §§12.37.200 (PR&T), 12.37.300(SE); |
New Jersey; N.J.Stat.Ann. §§2A:156A-27 to 2A:156A-34 (SE); |
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Florida: Fla.Stat.Ann. §§934.02; 934.21 to 934.28 (SE); 934.32 to 934.34(PR&T); |
Ohio: Ohio Rev.Code §2933.76 (PR&T); |
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Kansas: Kan.Stat.Ann. §§22-2525 to 22-2529 (PR&T); |
South Carolina: S.C.Code §§17-29-10 to 17-29-50, 17-30-45 to 17-30-50 (PR&T); |
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Missouri: Mo.Ann.Stat. §542.408 (PR); |
Virginia: Va.Code §§19.2-70.1, 19.2-70.2 (PR&T), 19.2-70.3 (SE); |
Appendix F. State Computer Crime Statutes
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Alabama: Ala.Code §§13A-8-100 to 13A-8-103; |
Nevada: Nev.Rev.Stat. §§205.473 to 205.513; |
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Colorado: Colo.Rev.Stat. §§18-5.5-101, 18-5.5-102; |
New Mexico: N.M.Stat.Ann. §§30-45-1 to 30-45-7; |
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Hawaii: Hawaii Rev.Stat. §708-890 to 708-895.7; |
Oklahoma: Okla.Stat.Ann. tit.21 §§1951 to 1959; |
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Kansas: Kan.Stat.Ann. §21-3755; |
South Dakota: S.D.Cod.Laws §§43-43B-1 to 43-43B-8; |
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Michigan: Mich.Comp.Laws Ann. §§752.791 to 752.797; |
Vermont: Vt. Stat. Ann. tit. 13, §§ 4101 to 4107; |
| 1. |
Portions of this report draw upon a series of earlier reports, no longer available, entitled: Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1970); Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1971); Wiretapping and Electronic Surveillance: Federal and State Statutes (1974); Taps and Bugs: A Compilation of Federal and State Statutes Governing the Interception of Wire and Oral Communications (1981); The Interception of Communications: A Legal Overview of Bugs and Taps (1988); Wiretapping & Electronic Surveillance: The Electronic Communications Privacy Act and Related Matters (1992); Taps, Bugs & Telephony: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (1998); Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2001); id. (2003); id. (2006); id. (2009). Much of what appears here was used to create a more limited report, CRS Report R41733, Privacy: An Overview of the Electronic Communications Privacy Act, by [author name scrubbed]. As used in this report "electronic eavesdropping" refers to the use of hidden microphones, recorders and any other mechanical or electronic means of capturing ongoing communications, other than wiretapping (tapping into telephone conversations). In previous versions of this report and other earlier writings, it was common to use a more neutral, and consequently preferred, term—electronic surveillance—at least when referring to law enforcement use. Unfortunately, continued use of the term "electronic surveillance" rather than "electronic eavesdropping" risks confusion with forms of surveillance that either have individualistic definitions (e.g., "electronic surveillance" under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801(f)), that involve surveillance that does not capture conversation (e.g., thermal imaging or electronic tracking devices), or that may or may not capture conversation (e.g., the coverage of video surveillance depends upon the circumstances and the statutory provision question). Related developments are discussed in CRS Report R42725, Reauthorization of the FISA Amendments Act, by [author name scrubbed]; CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by [author name scrubbed]; CRS Report R40980, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization, by [author name scrubbed] and [author name scrubbed]; CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by [author name scrubbed]; CRS Report RL33424, Government Access to Phone Calling Activity and Related Records: Legal Authorities, by [author name scrubbed] and [author name scrubbed]; CRS Report RL30677, The Communications Assistance for Law Enforcement Act, by [author name scrubbed]; and CRS Report RL34693, Online Data Collection and Disclosure to Private Entities: Selected Federal Laws and Self-Regulatory Regimes, by [author name scrubbed]. |
| 2. |
4 Blackstone, Commentaries on the Laws of England, 169 (1769). |
| 3. |
"Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the attention of the courts, and our books contain too few decisions upon it to enable an author to define it with confidence.... It never occupied much space in the law, and it has nearly faded from the legal horizon." 1 Bishop, Commentaries on the Criminal Law, 670 (1882). |
| 4. |
40 Stat.1017-18 (1918)("whoever during the period of governmental operation of the telephone and telegraph systems of the United States ... shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line ... or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year or both"); 56 Cong.Rec. 10761-765 (1918). |
| 5. |
44 Stat. 1172 (1927)(" ... no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person ... "). |
| 6. |
Olmstead v. United States, 277 U.S. 438, 479-80 n.13 (1928)(Brandeis, J., dissenting). Olmstead is remembered most today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment's search and seizure commands did not apply to government wiretapping accomplished without a trespass onto private property. |
| 7. |
Curtilage originally meant the land and buildings enclosed by the walls of a castle; in later usage it referred to the barns, stables, garden plots and the like immediately proximate to a dwelling; it is understood in Fourth Amendment parlance to describe that area which "harbors those intimate activities associated with domestic life and the privacies of the home," United States v. Dunn, 480 U.S. 294, 301 n.4 (1987). |
| 8. |
277 U.S. at 466. Olmstead had not been compelled to use his phone and so the Court rejected his Fifth Amendment challenge. 277 U.S.C. at 462. Any violation of the Washington state wiretap statute was thought insufficient to warrant the exclusion of evidence, 277 U.S. at 466-68. Justice Holmes in his dissent tersely characterized the conduct of federal wiretappers as "dirty business," 277 U.S. at 470. The dissent of Justice Brandeis observed that the drafters of the Constitution "conferred as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government against privacy of the individual whatever the means employed, must be deemed in violation of the Fourth Amendment," 277 U.S. at 478-79. |
| 9. |
"Congress may of course protect the secrecy of telephone messages by making them, when intercepted inadmissible in evidence in federal criminal trials, by direct legislation," 277 U.S. at 465. |
| 10. |
48 Stat. 1103-104 (1934), 47 U.S.C. 605 (1940 ed.). The Act neither expressly condemned law enforcement interceptions nor called for the exclusion of wiretap evidence, but it was read to encompass both, Nardone v. United States, 302 U.S. 379 (1937); Nardone v. United States, 308 U.S. 321 (1939). |
| 11. |
Section 605 did ban the interception and divulgence of radio broadcasts but it did not reach the radio transmission of conversations that were broadcast unbeknownst to all of the parties to the conversation. Late in the game, the FCC supplied a partial solution when it banned the use of licensed radio equipment to overhear or record private conversation without the consent of all the parties involved in the conversation, 31 Fed.Reg. 3400 (March 4, 1966), amending then 47 C.F.R. §§2.701, 15.11. The FCC excluded "operations of any law enforcement offices conducted under lawful authority," id. |
| 12. |
The volume of all Fourth Amendment cases calling for Supreme Court review increased dramatically after Mapp v. Ohio, 367 U.S. 643 (1961), acknowledged the application of the Fourth Amendment exclusionary rule to the states. |
| 13. |
Goldman v. United States, 316 U.S. 129 (1942). |
| 14. |
On Lee v. United States, 343 U.S. 747 (1952). |
| 15. |
Silverman v. United States, 365 U.S. 505 (1961). |
| 16. |
"The absence of a physical invasion of the petitioner's premises was also a vital factor in the Court's decision in Olmstead v. United States.... In holding that the wiretapping there did not violate the Fourth Amendment, the Court noted that the insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses. 277 U.S. at 457. There was no entry of the houses or offices of the defendants. 277 U.S. at 464. Relying upon these circumstances, the Court reasoned that the intervening wires are not part of (the defendant's) house or office any more than are the highways along which they are stretched. 277 U.S. at 465. "Here, by contrast, the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office—a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law . . . . "The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion ... This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard. "A distinction between the dictaphone employed in Goldman and the spike mike utilized here seemed to the Court of Appeals too fine a one to draw. The court was unwilling to believe that the respective rights are to be measured in fractions of inches. But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said long ago bears repeating now: It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635. We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch," 365 U.S. at 510-12 (internal quotation marks omitted). |
| 17. |
Wong Sun v. United States, 371 U.S. 471, 485 (1963). |
| 18. |
389 U.S. 347 (1967). |
| 19. |
"We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the trespass doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance." Later courts seem to prefer the "expectation of privacy" language found in Justice Harlan's concurrence: "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable," 389 U.S. at 361. |
| 20. |
388 U.S. 41 (1967). |
| 21. |
388 U.S. at 58-60. |
| 22. |
87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.). |
| 23. |
18 U.S.C. 2511(3)(1970 ed.)("Nothing contained in this chapter or in section 605 of the Communications Act ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities ... "). |
| 24. |
United States v. United States District Court, 407 U.S. 297 (1972). |
| 25. |
92 Stat. 1783, 50 U.S.C. 1801-1862. |
| 26. |
425 U.S. 435, 441-43 (1976). |
| 27. |
Id. at 44-45. |
| 28. |
442 U.S. 735, 741-46 (1979). |
| 29. |
Id. In United States v. New York Telephone Co., the Court held that the Title III did not apply to the use of pen registers and that federal courts had the power to authorize their installation for law enforcement purposes, 434 U.S. 157, 168 (1977). |
| 30. |
100 Stat. 1848 (1986). |
| 31. |
18 U.S.C. 2510-2522. |
| 32. |
18 U.S.C. 2701-2712. |
| 33. |
18 U.S.C. 3121-3126. |
| 34. |
P.L. 107-56, 115 Stat. 272 (2001). |
| 35. |
P.L. 107-108, 115 Stat. 1394 (2001). |
| 36. |
P.L. 107-273, 116 Stat. 1758 (2002). |
| 37. |
P.L. 107-296, 116 Stat. 2135 (2002). |
| 38. |
P.L. 109-177, 120 Stat. 192 (2006). |
| 39. |
P.L. 110-261, 122 Stat. 2436 (2008). |
| 40. |
18 U.S.C. 2511. Elsewhere, federal law proscribes: unlawful access to stored communications, 18 U.S.C. 2701; unlawful use of a pen register or a trap and trace device, 18 U.S.C. 3121; and abuse of eavesdropping and search authority or unlawful disclosures under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, 1827. |
| 41. |
18 U.S.C. 2511(1). |
| 42. |
18 U.S.C. 2510(6). Although the governmental entities are not subject to criminal liability, as noted infra, some courts believe them subject to civil liability under 18 U.S.C. 2520; Smoot v. United Transportation Union, 246 F.3d 633, 640-41 (6th Cir. 2001). |
| 43. |
"In order to underscore that the inadvertent reception of a protected 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 'intentional,'" S.Rept. 99-541, at 23 (1986); "This provision makes clear that the inadvertent interception of a protected communication is not unlawful under this Act," H.Rept. 99-647, at 48-9 (1986). See, e.g., In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003); Sanders v. Robert Bosch Corp., 38 F.3d 736, 742-43 (4th Cir. 1994); Lonegan v. Hasty, 436 F.Supp.2d 419, 429 (E.D.N.Y. 2006); Lewton v. Divingnzzo, 772 F.Supp.2d 1046, 1059 (D.Nev. 2011). "But the plaintiffs need not produce direct evidence of the intentional interception; for often the only way to prove that a stealthy interception occurred is through circumstantial evidence," McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 752 (7th Cir. 2010), citing, DirectTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). |
| 44. |
Narducci v. Village of Bellwood, 444 F.Supp. 924, 935 (N.D. Ill. 2006). |
| 45. |
"(1) Except as otherwise specifically provided in this chapter any person who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; "(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—(I) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or 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 premises of any business or other commercial establishment 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 possession of the United States," 18 U.S.C. 2511(1)(a),(b). |
| 46. |
"Subparagraph (a) establishes a blanket prohibition against the interception of wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign communications network, Congress has plenary power under the commerce clause to prohibit all interception of such communications whether by wiretapping or otherwise. "The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign commerce network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications. . . . "Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause, and other provisions of the Constitution to prohibit the interception of oral communications," S.Rept. 90-1097, at 91-2 (1968). |
| 47. |
Department of Justice Criminal Resource Manual §9-60.200 at 1050, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/60mcrm.htm#9-60.400. As will be noted in a moment, the statutory definitions of wire and electronic communications contain specific commerce clause elements, but the definition of oral communications does not. Subsequent Supreme Court jurisprudence relating to the breadth of Congress's commerce clause powers indicates that the precautions may have been well advised, United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). |
| 48. |
18 U.S.C. 2510(4). The dictionary definition of "aural" is "of or relating to the ear or to the sense of hearing," Merriam-Webster's Collegiate Dictionary 76 (10th ed. 1996). |
| 49. |
United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006)("an interception occurs where the tapped phone is located and where the law enforcement officers first overheard the call ... United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992); accord, United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997)(concluding that an interception occurs in the jurisdiction where the tapped phone is located, where the second phone in the conversation is located, and where the scanner used to overhear the call is located); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996)"). |
| 50. |
Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009)("In reaching this conclusion, we join a number of other circuits that have held that replaying of tapes containing recorded phone conversations does not amount to a new interception in violation of the Wiretap Act"), citing inter alia, United States v. Hammond, 286 F.3d 189, 193 (4th Cir. 2002); Reynolds v. Spears, 93 F.3d 428, 432-33 (8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156 (11th Cir. 1982). |
| 51. |
S.Rept. 99-541, at 13 (1986)(the "amendment clarifies that it is illegal to intercept the non-voice portion of a wire communication. For example, it is illegal to intercept the data or digitized portion of a voice communication"); see also, H.Rept. 99-647, at 34 (1986). |
| 52. |
See, United States v. Szymuszkiewicz, 622 F.3d 701, 705-706 (7th Cir. 2010)(an employee's surreptitiously programming his supervisor's computer, so that the server forwards duplicates to the employee of all emails sent to the supervisor, constitutes an interception in violation of Title III); United States v. Councilman, 418 F.3d 67, 79-80(1st Cir. 2005)(en banc)(service provider's access to email "during transient storage" constitutes "interception"; without deciding whether "interception is limited to acquisition contemporaneous with transmission"); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)(fraudulent access to stored communication does not constitute an "interception"; interception requires access contemporaneous with transmission); United States v. Smith, 155 F.3d 1051, 1058 (9th Cir. 1998)(unauthorized retrieval and recording of another's voice mail messages constitutes an "interception"); United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government's acquisition from the phone company of text messages was no interception because there was no contemporaneous access); Fraser v. National Mutual Insurance Co., 135 F.Supp.2d 623, 634-37 (E.D.Pa. 2001)("interception" of email occurs with its unauthorized acquisition prior to initial receipt by its addressee); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461-62 n.7 (5th Cir. 1994)(Congress did not intend for "interception" to apply to email stored on an electronic bulletin board; stored wire communications (voice mail), however, is protected from "interception"); United States v. Meriwether, 917 F.2d 955, 959-60 (6th Cir. 1990)(access to stored information through the use of another's pager does not constitute an "interception"); United States v. Reyes, 922 F.Supp. 818, 836-37 (S.D.N.Y. 1996)(same); Wesley College v. Pitts, 947 F.Supp. 375, 385 (D.Del. 1997)(no "interception" occurs when the contents of electronic communications are acquired unless contemporaneous with their transmission); Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 979-81 (M.D. Tenn. 2008)(same); see also, Adams v. Battle Creek, 250 F.3d 980, 982 (6th Cir. 2001)(use of a "clone" or duplicate pager to simultaneously receive the same message as a target pager is an "interception"); Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995)(same). |
| 53. |
115 Stat. 283 (2001). Such recourse to the procedures of the Stored Communications Act must still comply with the demands of the Fourth Amendment, see, United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)("Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak's emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional"). |
| 54. |
18 U.S.C. 2510(8). In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1061 (2012)("In United States v. Reed, 575 F.3d 900 (9th Cir. 2009), the Ninth Circuit held that data automatically generated about a telephone call, such as the call's time of origination and its duration, do not constitute 'content' for purposes of the Wiretap Act's sealing provisions because such data 'contains no "information concerning the substance, purport, or meaning of [the] communication."' Id. at 916 (quoting 18 U.S.C. 2510[(8)]). Rather, 'content' is limited to information the user intended to communicate, such as the words spoken in a phone call. Id. Here, the allegedly intercepted electronic communications are simply users' geolocation data. This data is generated automatically, rather than through the intent of the user, and therefore does not constitute 'content' susceptible to interception"). |
| 55. |
"'Post-cut-through dialed digits' are any numbers dialed from a telephone after the call is initially setup or 'cut-through.' Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party. Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like. In the latter case, the digits represent communications content; in the former, they are non-content call processing numbers," In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006). |
| 56. |
In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007); In re United States, 441 F.Supp.2d 816, 818-27 (S.D. Tex. 2006). |
| 57. |
18 U.S.C. 2510(4). United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government's acquisition from the phone company of text messages was not an interception because it did not involve contemporaneous access and because no electronic, mechanical, or other devices were used). |
| 58. |
United States v. Szymuszkiewicz, 622 F.3d 701, 707 (7th Cir. 2010)("Thus Szymuszkiewicz acquired the emails by using at least three devices: Infusino's computer (where the rule [directing surreptitious duplication of incoming emails] was set up), the Kansas City server (where the rule caused each message to be duplicated and sent his way), and his own computer (where the messages were received, read, and sometimes stored"). |
| 59. |
"'[E]lectronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; (b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal," 18 U.S.C. 2510(5). |
| 60. |
See the cases cited and commentary in Barnett & Makar, "In the Ordinary Course of Business": The Legal Limits of Workplace Wiretapping, 10 Hastings Journal of Communications and Entertainment Law 715 (1988); Application to Extension Telephones of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§2510 et seq.), Pertaining to Interceptions of Wire Communications, 58 ALR Fed. 594; Eavesdropping on Extension Telephone as Invasion of Privacy, 49 ALR 4th 430. |
| 61. |
E.g., Deal v. Spears, 780 F.Supp. 618, 623 (W.D.Ark. 1991), aff'd, 980 F.2d 1153 (8th Cir. 1992)(employer regularly taped employee calls by means of a device attached to an extension phone; most of the calls were personal and recording and disclosing them served no business purpose). |
| 62. |
Adams v. Battle Creek, 250 F.3d 980, 983 (6th Cir. 2001); Arias v. Mutual Central Alarm Service, 202 F.3d 553, 558 (2d Cir. 2000); Berry v. Funk, 146 F.3d 1003, 1008 (D.C.Cir. 1998); Sanders v. Robert Bosch Corp., 38 F.3d 736, 741 (4th Cir. 1994). See also, Hall v. Earthlink Network Inc., 396 F.3d 500, 503-04 (2d Cir. 2005) (Internet service provider's receipt and storage of former customer's email after termination of the customer's account was done in ordinary course of business and consequently did not constitute an interception). Some courts include surreptitious, extension phone interceptions conducted within the family home as part of the "business extension" exception, Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995). |
| 63. |
Adams v. Battle Creek, 250 F.3d at 984; see also, United States v. Lewis, 406 F.3d 11, 18 (1st Cir. 2005); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); Smith v. U.S.Dept. of Justice, 251 F.3d 1047, 1049-50 (D.C.Cir. 2001); United States v. Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990); United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980). |
| 64. |
Amati v. Woodstock, 176 F.3d 952, 955 (7th Cir. 1999)("Investigation is within the ordinary course of law enforcement, so if 'ordinary' were read literally warrants would rarely if ever be required for electronic eavesdropping, which was surely not Congress's intent. Since the purpose of the statute was primarily to regulate the use of wiretapping and other electronic surveillance for investigatory purposes, ‛ordinary' should not be read so broadly; it is more reasonably interpreted to refer to routine noninvestigative recording of telephone conversations"); accord, United States v. Lewis, 416 F.3d at 11; Colandrea v. Orangetown, 411 F.Supp.2d 342, 347-48 (S.D.N.Y. 2007). |
| 65. |
The exception, however, does not permit a county to record all calls in and out of the offices of county judges merely because a detention center and the judges share a common facility, Abraham v. Greenville, 237 F.3d 386, 390 (4th Cir. 2001), nor does it permit jailhouse telephone monitoring of an inmate's confession to a clergyman, Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997). The courts are divided over whether private corrections officials are covered by the law enforcement exception. Compare, United States v. Faulkner, 323 F. Supp.2d 1111, 1113-17 (D. Kan. 2004), aff'd on other grounds, 439 F.3d 1221 (10th Cir. 2006) (not covered) with, United States v. Rivera, 292 F. Supp.2d 838, 842-43 (E.D.Va. 2003) (covered). |
| 66. |
United States v. Larios, 593 F.3d 82, 90-91 (1st Cir. 2010); United States v. Falls, 34 F.3d 674, 679-80 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 538 (9th Cir. 1992); United States v. Biasucci, 786 F.2d 505, 508-509 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Cir. 1984). |
| 67. |
"'[O]ral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication," 18 U.S.C. 2510(2). United States v. Larios, 593 F.3d 82, 92 (1st Cir. 2010)(emphasis in the original but most internal quotation marks and citations omitted)(The "legislative history of this statutory provision shows that Congress intended this definition to parallel the 'reasonable expectation of privacy test' articulated by the Supreme Court in Katz. Thus, for Title III to apply, the court must conclude: (1) the defendant had an actual, subjective expectation of privacy—i.e., that his communications were not subject to interception; and (2) the defendant's expectation is one society would objectively consider reasonable.... We conclude that the most reasonable reading of the statute is that the meaning of 'oral communication' was intended to parallel evolving Fourth Amendment jurisprudence on reasonable expectations of privacy in one's communications"); Pattee v. Georgia Ports Authority, 512 F.Supp.2d 1372, 1376-377 (S.D.Ga. 2007). |
| 68. |
"'[W]ire communication' means any aural transfer made in whole or in part through the use of facilities 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 connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce," 18 U.S.C. 2510(1). |
| 69. |
"'[E]lectronic 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, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—(A) the radio portion of a cordless telephone communication that is transmitted between the cordless 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 defined in section 3117 of this title)," 18 U.S.C. 2510(12). |
| 70. |
18 U.S.C. 2511(2)(g). |
| 71. |
18 U.S.C. 2511(1). |
| 72. |
18 U.S.C. 2512, discussed, infra. |
| 73. |
E.g., 47 U.S.C. 605 (1940 ed.). |
| 74. |
On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); United States v. White, 401 U.S. 745 (1971). |
| 75. |
United States v. White, 401 U.S. at 751 (1971)("Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights.... For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks"); Lopez v. United States 373 U.S. 427, 439 (1963)("Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording"). |
| 76. |
"(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication 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, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication 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," 18 U.S.C. 2511(2)(c), (d). |
| 77. |
For citations to state law, see, Appendix B. |
| 78. |
United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v. Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002) (same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir. 1990) (use of landlady's phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003) (inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st Cir. 2008)(explicit consent as a condition for phone privileges). |
| 79. |
Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981). |
| 80. |
United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O'Ferrell v. United States, 968 F.Supp. 1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who were then executing a search warrant at his place of business that he could only speak to her with the agents listening in consented to the interception, even if FBI's initial search was unconstitutional). |
| 81. |
18 U.S.C. 2511(2)(d); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003). |
| 82. |
Caro v. Weintraub, 618 F.3d 94, 100 (2d Cir. 2010)("We join the courts that have considered this question, and hold that a cause of action under §2511(2)(d) requires that the interceptor intend to commit a crime or tort independent of the act of recording itself"), citing, Desnick v. American Broadcasting Co., 44 F.3d 1345, 1347-48 (7th Cir. 1995); Sussman v. American Broadcasting Co, 186 F.3d 1200, 1201 (9th Cir. 1999). |
| 83. |
S.Rept. 99-541, at 17-8 (1986); H.Rept. 99-647, at 39-40 (1986). |
| 84. |
"(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 transmitted—(I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; (II) by any governmental, law enforcement, civil defense, private land mobile, or public safety 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 (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 encrypted," 18 U.S.C. 2511(2)(g). |
| 85. |
"Except as otherwise specifically provided in this chapter any person who (a) intentionally intercepts.... " 18 U.S.C. 2511(1)(emphasis added). |
| 86. |
"Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably 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 security interest, or (iii) conspiratorial activities characteristic of organized crime, [—] that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception 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, oral, or electronic communication 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, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application," 18 U.S.C. 2518(7). |
| 87. |
"(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser," 18 U.S.C. 2511(2)(i). |
| 88. |
"(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act," 18 U.S.C. 2511(2)(e). |
| 89. |
"(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 purpose of chapter 206).... " 18 U.S.C. 2511(2)(h). Neither the stored communications sections in chapter 121 nor the pen register and trap and trace device in chapter 206 authorize the contemporaneous interception of the contents of a communication. For the citations to state statutes permitting judicial authorization of law enforcement interception of wire, oral or electronic communications, for access to stored electronic communications, and for the use of pen registers and trap and trace devices, see, Appendix D. |
| 90. |
"(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks . . . *** "(h) It shall not be unlawful under this chapter . . . "(ii) for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service," 18 U.S.C. 2511(2)(a)(I), (h). |
| 91. |
"(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with— (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in 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 specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter," 18 U.S.C. 2511(2)(a)(ii). |
| 92. |
"(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained," 18 U.S.C. 2511(2)(b). |
| 93. |
Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998); Wagner v. Wagner, 64 F.Supp.2d 895, 889-901 (D.Minn. 1999); Campbell v. Price, 2 F.Supp.2d 1186, 1191-192 (E.D.Ark. 1998); Thompson v. Dulaney, 838 F.Supp. 1535, 1544-45 (D.Utah 1993); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1205-206 (N.D.Okla. 2007). |
| 94. |
Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991); Kempf v. Kempf, 868 F.2d 970, 972 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976); Kratz v. Kratz, 477 F.Supp. 463, 467-70 (E.D.Pa. 1979); Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Lombardo v. Lombardo, 192 F.Supp.2d 885, 809 (N.D.Ill. 2002). |
| 95. |
Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974); Perfit v. Perfit, 693 F.Supp. 851, 854-56 (C.D.Cal. 1988); see generally, Applicability, in Civil Action, of Provisions of Omnibus Crime Control and Safe Streets Act of 1968 Prohibiting Interception of Communications (18 USCS §2511(1)), to Interception by Spouse, or Spouse's Agent, of Conversations of Other Spouse, 139 ALR Fed. 517, and the cases discussed therein. |
| 96. |
Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1203-205 (N.D. Okla. 2007); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995). |
| 97. |
18 U.S.C. 2511(1)(c). |
| 98. |
McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753 (7th Cir. 2010), citing, Nix v. O'Malley, 160 F.3d 343, 348 (6th Cir. 1998); Williams v. Poulos, 11 F.3d 271, 284 (1st Cir. 1993); and Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992). |
| 99. |
Bartnicki v. Vopper, 532 U.S. 514, 533-34 (2001). Bartnicki was a union negotiator whose telephone conversations with the union's president concerning a negotiation of a teachers' contract were surreptitiously intercepted and recorded. During the conversation, the possibility of using violence against school board members was mentioned. After the teachers' contract was signed, the unknown wiretapper secretly supplied Yocum, a critic of the union's position, with a copy of the tape. Yocum in turn played it for members of the school board and turned it over to Vopper, a radio talk show host, who played it on his show. Other stations and media outlets published the contents as well. Bartnicki sued Vopper and Yocum for use and disclosure in violation of sections 2511(1)(c) and 2511(1)(d). Vopper and Yocum offered a free speech defense, which the Supreme Court accepted. But see, Quigley v. Rosenthal, 327 F.3d 1044, 1067-68 (10th Cir. 2003) (denying First Amendment protection for those knowingly involved with interceptors of private matters (not public concerns)); Boehner v. McDermott, 484 F.3d 573, 577-81 (D.C.Cir. 2007)(Members of Congress do not have a First Amendment right to disclose unlawful wiretap information in violation of House rules). |
| 100. |
"Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication by any person knowing or having reason to know the information was obtained through an interception in violation of this subsection. The disclosure of the contents of an intercepted communication that had already become 'public information' or 'common knowledge' would not be prohibited. The scope of this knowledge required to violate either subparagraph reflects existing law (Pereira v. United States, 347 U.S. 1 (1954))," S.Rept. 90-1097, at 93 (1967). |
| 101. |
"Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure," 18 U.S.C. 2517(1). |
| 102. |
"Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted 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," 18 U.S.C. 2517(3). This does not entitle private litigants to disclosure in the view of at least one court, In re Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir. 1993). When court-ordered interception results in evidence of a crime other than the crime with respect to which the order was issued, the evidence is admissible only upon a judicial finding that it was otherwise secured in compliance with Title III/ECPA requirements, 18 U.S.C. 2517(5). |
| 103. |
18 U.S.C. 2511(1)(e). When acting with a similar intent, disclosure of the fact of authorized federal wiretap or foreign intelligence gathering is proscribed elsewhere in title 18: "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," 18 U.S.C. 2232(d). "Whoever, having knowledge that a Federal officer has been authorized or has applied for authorization to conduct electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (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," 18 U.S.C. 2232(e). |
| 104. |
18 U.S.C. 2511(1)(e), (4)(a), 2520(a), (g). |
| 105. |
18 U.S.C. 2516(2). |
| 106. |
Id. |
| 107. |
18 U.S.C. 2511(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 communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient"). |
| 108. |
18 U.S.C. 2511(3)(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"). |
| 109. |
Note that subsection 2520(d) establishes a good faith defense that specifically references the prohibition: "A good faith reliance on ... (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.... " |
| 110. |
18 U.S.C. 2511(1)(d). |
| 111. |
See e.g., McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753-54 (7th Cir. 2010). |
| 112. |
"Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication by any person knowing or having reason to know the information was obtained through an interception in violation of this subsection," S.Rept. 90-1097, at 93 (1967). |
| 113. |
Compare, 18 U.S.C. 2517(1)("Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure"), with 18 U.S.C. 2517(2)("Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties"). On the other hand, the Supreme Court in Bartnicki seemed to parse the constitutionally suspect ban on disclosure from the constitutionally permissible ban on use. Bartnicki v. Vopper, 532 U.S. 514, 526-27 (2001)("[T]he naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the ‛use' of the contents of an illegal interception in §2511(1)(d), subsection (c) is not a regulation of conduct"). |
| 114. |
Forsyth v. Barr, 19 F.3d 1527, 1541-545 (5th Cir. 1994); United States v. Murdock, 63 F.3d 1391, 1400-403 (6th Cir. 1995); contra, United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Berry v. Funk, 146 F.3d 1003, 1011-13 (D.C.Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1300-302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1077 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). |
| 115. |
18 U.S.C. 2511(4), 2520(a), (g). |
| 116. |
"It shall not be unlawful under this section for—(a) a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service ... to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell 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, oral, or electronic communications," 18 U.S.C. 2512(2)(a). |
| 117. |
"(2) It shall not be unlawful under this section for ... (b) an officer, agent, or employee of, or a person under contract 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 commerce, or manufacture, assemble, possess, or sell 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, oral, or electronic communications. "(3) It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which is duly authorized to use such device," 18 U.S.C. 2512(2)(b),(3). |
| 118. |
United States v. Spy Factory, Inc., 951 F.Supp. 450, 473-75 (S.D.N.Y. 1997); United States v. Bast, 495 F.2d 138, 141 (D.C.Cir. 1974). |
| 119. |
United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011). |
| 120. |
18 U.S.C. 2512. |
| 121. |
S.Rept. 90-1097, at 95 (1968). |
| 122. |
The two appellate panel decisions that found the devices beyond the bounds of section 2512, United States v. Herring, 933 F.2d 932 (11th Cir. 1991) and United States v. Hux, 940 F.2d 314 (8th Cir. 1991) were overturned en banc, United States v. Herring, 993 F.2d 784, 786 (11th Cir. 1993); United States v. Davis, 978 F.2d 415, 416 (8th Cir. 1992). |
| 123. |
United States v. Harrell, 983 F.2d 36, 37-39 (5th Cir. 1993); United States v. One Macom Video Cipher II, 985 F.2d 258, 259-61 (6th Cir. 1993); United States v. Shriver, 989 F.2d. 898, 901-06 (7th Cir. 1992); United States v. Davis, 978 F.2d 415, 417-20 (8th Cir. 1992); United States v. Lande, 968 F.2d 907, 910-11 (9th Cir. 1992); United States v. McNutt, 908 F.2d 561, 564-65 (10th Cir. 1990); United States v. Herring, 993 F.2d 784, 786-89 (11th Cir. 1991). |
| 124. |
DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004); DirecTV, Inc. v. Robson, 420 F.3d 532, 538-39 (5th Cir. 2005)(citing several district court cases that have reached the same conclusion). Proof that the possessor used the device to intercept satellite transmission evidences a violation of section 2511 and exposure to civil liability under section 2520, DirecTV, Inc. v. Nicholas, 403 F.3d 223, 227-28 (4th Cir. 2005); DirecTV, Inc. v. Pepe, 431 F.3d 162, 169 (3d Cir. 2005). |
| 125. |
18 U.S.C. 2516-2518. |
| 126. |
18 U.S.C. 2511(2)(c). |
| 127. |
18 U.S.C. 2511(2)(i)("It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser"). A computer trespasser is a person who: (A) "accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and (B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer," 18 U.S.C. 2510(21). |
| 128. |
"The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney 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 or 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 evidence of [the predicate offenses] ... " 18 U.S.C. 2516(1). Subsection 2516(1) "plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition of any judicial order," United States v. Giordano, 416 U.S. 505, 515-16 (1974). Evidence generated without such senior approval must be suppressed, id. at 23. However, "suppression is not warranted ... when a wiretap application or order either misidentifies a DOJ official who could not legally authorize the wiretap or, ... identifies no official at all, so long as the record shows that a statutorily designated official actually gave the authorization," United States v. Gray, 521 F.3d 514, 526-27 (6th Cir. 2008), citing in accord, United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005); United States v. Radcliff, 331 F.3d 1153, 1160-163 (10th Cir. 2003); United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003). |
| 129. |
The list appears in 18 U.S.C. 2516(1). |
| 130. |
18 U.S.C. 2516(1)(l). |
| 131. |
"Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer 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," 18 U.S.C. 2516(3); e.g., United States v. Benjamin, 72 F.Supp.2d 161, 189 (W.D.N.Y. 1999). |
| 132. |
18 U.S.C. 2516(2). |
| 133. |
Identification of the place where, or facilities over which, the targeted communications are to occur may be excused where the court finds that the suspect has or will take steps to thwart interception, 18 U.S.C. 2518(11), (12); United States v. Oliva, 686 F.3d 1106, 1109-110 (9th Cir. 2012). |
| 134. |
18 U.S.C. 2518(1), (2). |
| 135. |
18 U.S.C. 2518(3). Paragraphs 2518(3)(a) and (b) mirror the probable demands of the Fourth Amendment, i.e., that the court find probable cause to believe that the interception will capture evidence of a specific offense, United States v. Abu-Jihaad, 630 F.3d 102, 122 (2d Cir. 2010), citing, Dalia v. United States, 441 U.S. 238, 255 (1979). Title III, however, provides its own particularity requirements relating to targets, facilities, locations, and crimes, United States v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011), citing inter alia, United States v. Donovan, 429 U.S. 413, 427 n.15 (1977). |
| 136. |
18 U.S.C. 2518(3). As for the necessity requirement of paragraph 2518(3)(c), the Supreme Court explained in the infancy of Title III that: "[I]t is at once apparent that [Title III] not only limits the crimes for which intercept authority may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. §§2518(1)(c) and (3)(c)," United States v. Giordano, 416 U.S. 505, 515 (1974). Thus, "[t]he necessity requirement was intended to ensure that wiretaps are not used as the initial step in a criminal investigation. However, officials need not exhaust every conceivable investigative technique before obtaining a wiretap." United States v. Forrester, 616 F.3d 929, 944 (9th Cir. 2010)(internal citations omitted); see also, United States v. Long, 639 F.3d 293, 301 (7th Cir. 2011)(internal citations omitted)("While this necessity requirement discourages the use of wiretaps as a first-line investigative tool in the mine run of cases, it was not intended to ensure that wiretaps are used only as a last resort in an investigation. Hence, the government's burden of establishing necessity is not high, and whether it met the burden is reviewed in a practical, common-sense fashion"); United States v. Glover, 681 F.3d 411, 420 (D.C. Cir. 2012)("That [necessity] requirement is satisfied when traditional investigative techniques have proved inadequate to reveal the operation's full nature and scope"); United States v. Perez, 661 F.3d 568, 581 (1st Cir. 2011); United States v. Foy, 641 F.3d 455, 464 (10th Cir. 2011); United States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007). |
| 137. |
Under subsection 2518(5), officers executing an interception order must take efforts to minimize the capture of communications that are outside the scope of the orders; United States v. De La Cruz Suarez, 601 F.3d 1202, 1215 (11th Cir. 2010). Whether their efforts are sufficient is matter governed by the circumstances surrounding the interception, Scott v. United States, 436 U.S. 128, 135-37 (1978); United States v. Glover, 681 F.3d 411, 420-21 (D.C.Cir. 2012); United States v. West, 589 F.3d 936, 939-40 (8th Cir. 2009); United States v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir. 2008)("In United States v. Willis, this court articulated the proper procedure for determining the reasonableness of governmental efforts to avoid monitoring non-pertinent calls. 890 F.2d 1099, 1102 (10th Cir. 1989). The government must make an initial prima facie showing of reasonable minimization. Id. 'Once the government has made a prima facie showing of reasonable minimization, the burden then shifts to the defendant to show more effective minimization could have taken place." Id. In determining whether the government has made a prima facie showing of reasonable efforts to minimize the interception of non-pertinent calls, we consider the factors identified by the Supreme Court in Scott: (1) whether a large number of the calls are very short, one-time only, or in guarded or coded language; (2) the breadth of the investigation underlying the need for the wiretap; (3) whether the phone is public or private; and (4) whether the non-minimized calls occurred early in the surveillance. 436 U.S. at 140-41. It is also appropriate to consider (5) the extent to which the authorizing judge supervised the ongoing wiretap. United States v. Lopez, 300 F.3d 46, 57 (1st Cir. 2002); United States v. Daly, 535 F.2d 434, 442 (8th Cir. 1976); United States v. Vento, 533 F.2d 838, 853 (3d Cir. 1976)"). |
| 138. |
18 U.S.C. 2518(4). |
| 139. |
18 U.S.C. 2518(7). An observation made a quarter of a century ago remains true: "very little case-law interpretation of the emergency requirement exists," United States v. Crouch, 666 F.Supp. 1414, 1416 (N.D. Cal. 1987)(holding that twenty-day-old information indicating the defendants would commit a bank robbery within the next sixty days did not constitute a sufficient emergency to justify invocation of subsection 2518(7)); but see, Nabozny v. Marshall, 781 F.2d 83, 84-5 (6th Cir. 1986)(holding with respect to a hostage situation "an emergency situation existed within the terms of the statute"). |
| 140. |
18 U.S.C. 2518(5). |
| 141. |
18 U.S.C. 2518(6). |
| 142. |
18 U.S.C. 2518(8)(a),(b). Paragraph 2518(8)(a) requires that court ordered interceptions be recorded and that the recording immediately be sealed by the court, upon expiration of the interception authority. The seal or a satisfactory explanation for its absence is a prerequisite to the admissibility of the contents or anything derived from the contents as evidence. "The 'absence' the Government must satisfactorily explain encompasses not only the total absence of a seal but also the absence of a timely applied seal," United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). "[T]he 'satisfactory explanation' language in §2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable," Id. at 265; United States v. Martin, 618 F.3d 705, 716, 718 (7th Cir. 2010)(some internal citations omitted)("[W]hat should be deemed 'satisfactory' in the context of a statute aimed at preventing government tampering with electronic evidence must depend largely on the statutory objective. A satisfactory explanation must dispel any reasonable suspicion of tampering, and also must be both accurate and believable. Whether the explanation is satisfactory also may depend on the delay in sealing, unique pressure on the Government to obtain a conviction due to particularly notorious charges or defendants, the importance of the recordings to the Government's case and whether the Government has established a procedure for complying with its sealing obligations.... Cf. United States v. Quintero, 38 F.3d 1317, 1328-330 (3d Cir. 1994) (rejecting the prosecutor's heavy workload as a satisfactory explanation for a sealing delay because to do so 'would be rendering extraordinary that which is ordinary'); United States v. Carson, 969 F.2d 1480, 1498 (3d Cir. 1992) (rejecting the need to enhance the audibility of tapes as a satisfactory explanation for a sealing delay because that need was "readily foreseeable and could just as readily become routine"); but see, United States v. Bansal, 663 F.3d 634, 651-53 (3d Cir. 2011)(finding the government's reasonable mistake of fact a satisfactory explanation for its failure to seal in a timely manner). The section does not preclude use or disclosure other than admissibility of the intercepted contents in judicial proceedings, United States v. Amanuel, 615 F.3d 117, 125-28 (2d Cir. 2010)(uphold the admissibility of evidence secured under a warrant based on interceptions that were recorded in violation of section 2518(8)(a)). |
| 143. |
18 U.S.C. 2518(8)(d), (9). |
| 144. |
18 U.S.C. 2517(1), (2), (5), (7). This includes the disclosures to a criminal defendant required in 18 U.S.C. 2518(9), cf., SEC v. Rajaratnam, 622 F.3d 159, 172-87 (2d Cir. 2010)(holding that a government attorney may disclose wiretap communications to a criminal defendant under 18 U.S.C. 2517(2) and that under some circumstances the defendant may be compelled to disclose them in the context of a governmental civil enforcement action). |
| 145. |
18 U.S.C. 2517(6). "'[F]oreign intelligence information,' for purposes of section 2517(6) of this title, means—(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against—(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii) sabotage or intentional terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence activities by and intelligence service or network of a foreign power or by an agent of a foreign power; or (B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to—(i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the United States," 18 U.S.C. 2510(19). |
| 146. |
18 U.S.C. 2518(8). |
| 147. |
18 U.S.C. 2517(3), (5). |
| 148. |
18 U.S.C. 2517(4). |
| 149. |
18 U.S.C. 2511(2)(c). |
| 150. |
United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v. Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002) (same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir. 1990) (use of landlady's phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003) (inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st Cir. 2008)(explicit consent as a condition for phone privileges). |
| 151. |
Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981). |
| 152. |
United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O'Ferrell v. United States, 968 F.Supp. 1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who were then executing a search warrant at his place of business that he could only speak to her with the agents listening in consented to the interception, even if FBI's initial search was unconstitutional). |
| 153. |
See, Clemnts-Jeffrey v. Springfield, 810 F.Supp.2d 857, 871-72 (S.D.Ohio 2011)("As Plaintiffs correctly point out, §2511(2)(i) is completely inapposite because the Absolute Defendants, who intercepted Plaintiffs' electronic communications, were not 'acting under color of law'"). |
| 154. |
Section 217, P.L. 107-56, 115 Stat. 291 (2001). |
| 155. |
Implementation of the USA PATRIOT Act: Crime, Terrorism and the Age of Technology: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 109th Cong., 2d sess. 30-1 (2005)(prepared statement of FBI Dep. Ass't Director Steven M. Martinez). |
| 156. |
"Except as provided in (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title* or imprisoned not more than five years, or both." 18 U.S.C. 2511(4)(a). * Section 3559 of title 18 classifies as a felony any offense with a maximum penalty of imprisonment of more than one year; and as a Class A misdemeanor any offense with a maximum penalty of imprisonment set at between six months and one year. Unless Congress clearly rejects the general fine ceilings it provides, section 3571 of title 18 sets the fines for felonies at not more than $250,000 for individuals and not more than $500,000 for organizations, and for class A misdemeanors at not more than $100,000 for individuals and not more than $200,000 for organizations. If there is monetary loss or gain associated with the offense, the offender may alternatively be fined not more than twice the amount of the loss or gain, 18 U.S.C. 3571. |
| 157. |
116 Stat. 2158 (2002). |
| 158. |
18 U.S.C. 2511(4)(b)(2000 ed.). |
| 159. |
"(b) Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted—(i) to a broadcasting station for purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities 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 purpose of direct or indirect commercial advantage or private financial gain," 18 U.S.C. 2511(4)(b). |
| 160. |
"(5)(a)(I) If the communication is—(A) a private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial 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 encrypted and the conduct in violation of this chapter is not for tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the person who engages in such conduct shall be subject to suit by the Federal Government in a court of competent jurisdiction. (ii) In an action under this subsection—(A) if the violation of this chapter is a first offense for the person under paragraph (a) of subsection (4) and such person has not been found liable in a civil action under section 2520 of this title, the Federal Government shall be entitled to appropriate injunctive relief; and (B) if the violation of this chapter is a second or subsequent offense under paragraph (a) of subsection (4) or such person has been found liable in any prior civil action under section 2520, the person shall be subject to a 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 injunction." 18 U.S.C. 2511(5). Under 18 U.S.C. 2520, victims may recover the greater of actual damages or statutory damages of not less than $50 and not more than $500 for the first offense; those amounts are increased to $100 and $1000 for subsequent offenses. |
| 161. |
18 U.S.C. 2513 ("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 ... "); 18 U.S.C. 983(a)(3)(C)("In lieu of, or in addition to, filing a civil forfeiture complaint, the Government may include a forfeiture allegation in a criminal indictment ... "). |
| 162. |
"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) [electronic communications provider authority to disclose content of an electronic 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] or 2511(2)(I) [interception of communications of a trespasser in a computer system] 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," 18 U.S.C. 2520(d). |
| 163. |
The $10,000 lump sum for liquidated damages is limited to a single award per victim rather than permitting $10,000 multiples based on the number of violations or the number of types of violations, as long as the violations are "interrelated and time compacted," Smoot v. United Transportation Union, 246 F.3d 633, 642-645 (6th Cir. 2001); Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 713 (1st Cir. 1999); see also, Dish Nework v. Delvecchio, 831 F.Supp.2d 595, 601 (W.D.N.Y. 2011)(""Although a range is given for violations under 2520(c)(1), Congress provided no such range under 2520(c)(2). Therefore, in the Court's view, the discretion provided to it allows it only to decide between no damages and $10,000"). |
| 164. |
18 U.S.C. 2520(b), (c). |
| 165. |
Compare, e.g., DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1006-1008 (7th Cir. 2010); DirecTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir. 2004); Dorris v. Absher, 179 F.3d, 420, 429-30 (6th Cir. 1999); Nalley v. Nalley, 53 F.3d 649, 651-53 (4th Cir. 1995), Reynolds v. Spears, 93 F.3d 428, 433 (8th Cir. 1996); DirecTV, Inc. v. Neznak, 371 F.Supp.2d 130, 133-34 (D.Conn. 2005) (each concluding that courts have discretion), with, Rodgers v. Wood, 910 F.2d 444, 447-49 (7th Cir. 1990) and Menda Biton v. Menda, 812 F.Supp. 283, 284 (D. Puerto Rico 1993) (courts have no such discretion) (note that after Menda, the First Circuit in Desilets v. Wal-Mart Stores, Inc., 171 F.3d at 716-17 treated as a matter for the trial court's discretion the question of whether the award of plaintiff's attorneys' fees should be reduced when punitive damages have been denied). Section 2520(c) has a second statutory damage provision, available for violations involving private satellite videos or radio communications, 18 U.S.C. 2520(c)(1). This provision is more clearly mandatory (18 U.S.C. 2520(c)(1): "the court shall access damages" versus 18 U.S.C. 2520(c)(2): "the court may assess as damages")(emphasis added in both instances). |
| 166. |
Adams v. Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001); Organizacion JD Ltda. v. United States Department of Justice, 18 F.3d 91, 94-5 (2d Cir. 1994); Garza v. Bexar Metropolitan Water District, 639 F.Supp.2d 770, 773-74 (W.D.Tex. 2009); Connor v. Tate, 130 F.Supp.2d 1370, 1374 (N.D.Ga. 2001); Dorris v. Absher, 959 F.Supp. 813, 820 (M.D.Tenn. 1997), aff'd/rev'd in part on other grounds, 179 F.3d 420 (6th Cir. 1999); PBA Local No. 38 v. Woodbridge Police Department, 832 F.Supp. 808, 822-23 (D.N.J. 1993) (each concluding that governmental entities may be held liable); contra, Abbott v. Winthrop Harbor, 205 F.3d 976, 980 (7th Cir. 2000); Amati v. Woodstock, 176 F.3d 952, 956 (7th Cir. 1999). |
| 167. |
Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009); Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000); Blake v. Wright, 179 F.3d 1003, 1011-13(6th Cir. 1999); Babb v. Eagleton, 614 F.Supp.2d 1232, 1237-238 (N.D.Okla. 2008); contra, Berry v. Funk, 146 F.3d 1003, 1013 (D.C.Cir. 1998); see generally, Qualified Immunity as Defense in Suit Under Federal Wiretap Act (18 U.S.C.A. §§2510 et seq.), 178 ALR Fed. 1. |
| 168. |
18 U.S.C. 2520(d) ("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) or 2511(2)(i) 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"); SEC v. Rajaratnam, 622 F.3d 159, 175 (2d Cir. 2010); Clements-Jeffrey v. Springfield, 810 F.Supp.2d 857, 872 (S.D. Ohio 2011). |
| 169. |
Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); United States v. Wuliger, 981 F.2d 1497, 1507 (6th Cir. 1992); Rice v. Rice, 951 F.2d 942, 944-45 (8th Cir. 1991); but see, McCready v. eBay, 453 F.3d 882, 892 (7th Cir. 2006). |
| 170. |
50 U.S.C. 1885a("Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that - (1) any assistance by that person was provided pursuant to an order of the court established under section 1803(a) of this title [relating to electronic surveillance under FISA] directing such assistance; (2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B)[relating to the Attorney General's assurance that no court approval is required] or 2709(b)[relating to a national security letter] of title 18; (3) any assistance by that person was provided pursuant to a directive under section 1802(a)(4)[relating to electronic surveillance without a court order under FISA] ... or 1881a(h)[relating to communications of overseas targets under FISA] of this title directing such assistance; [or] (4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—(A) in connection with an intelligence activity involving communications that was - (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 ... "). |
| 171. |
18 U.S.C. 2712. |
| 172. |
18 U.S.C. 2712(a). |
| 173. |
"If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination," 18 U.S.C. 2520(f). |
| 174. |
Ala. Opinion 84-22 (1984); People v. Smith, 778 P.2d 685, 686, 687 (Colo. 1989); Haw. Formal Opinion No. 30 (1988); Ind.State Bar Ass'n Op.No.1 (2000); Iowa State Bar Ass'n v. Mollman, 488 N.W.2d 168, 169-70, 171-72 (Iowa 1992); Mo.Advisory Comm. Op. Misc. 30 (1978); Tex.Stat.Bar Op. 514 (1996); Va. LEO #1635 (1995), Va. LEO #1324; Gunter v. Virginia State Bar, 238 Va. 617, 621-22, 385 S.E.2d 597, 600 (1989). The federal courts seem to have been in accord, Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Moody v. IRS, 654 F.2d 795 (D.C.Cir. 1981); Ward v. Maritz, Inc., 156 F.R.D. 592 (D.N.J. 1994); Wilson v. Lamb, 125 F.R.D. 142 (E.D.Ky. 1989); Haigh V. Matsushita Electric Corp., 676 F.Supp. 1332 (E.D.Va. 1987). |
| 175. |
Ariz. Opinion No. 95-03 (1995); Alaska Bar Ass'n Eth.Comm. Ethics Opinions No. 95-5 (1995) and No. 91-4 (1991); Idaho Formal Opinion 130 (1989); Kan.Bar.Ass'n Opinion 96-9 (1997); Ky.Opinion E-279 (1984); Minn.Law.Prof. Resp.Bd. Opinion No. 18 (1996); Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997); S.C. Ethics Advisory Opinion 92-17 (1992); Tenn.Bd.Prof.Resp. Formal Ethics Opinion No. 86-F-14(a) (1986). |
| 176. |
D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under circumstances in which the uninformed party should have anticipated that the conversation would be recorded or otherwise memorialized); Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993)(context of the circumstances test); Conn.Bar Ass''n Op. 98-9 (1998)(same); Mich.State Bar Op. RI-309 (1998)(same); Me.State Bar Op.No. 168 (1999)(same); N.M.Opinion 1996-2 (1996)(members of the bar are advised that there are no clear guidelines and that the prudent attorney avoids surreptitious recording); N.C. RPC 171 (1994)(lawyers are encouraged to disclose to the other lawyer that a conversation is being tape recorded); Okla.Bar Ass'n Opinion 307 (1994)(a lawyer may secretly recording his or her conversations without the knowledge or consent of other parties to the conversation unless the recording is unlawful or in violation of some ethical standard involving more than simply recording); Ore.State Bar Ass'n Formal Opinion No. 1991-74 (1991) (an attorney with one party consent he or she may record a telephone conversation "in absence of conduct which would reasonably lead an individual to believe that no recording would be made"); Utah State Bar Ethics Advisory Opinion No. 96-04 (1996) ("recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation"); Wis.Opinion E-94-5 ("whether the secret recording of a telephone conversation by a lawyer involves ‛dishonesty, fraud, deceit or misrepresentation' under SCR 20:8.4(c) depends upon all the circumstances operating at the time"). In New York, the question of whether an attorney's surreptitiously recording conversations is ethically suspect is determined by locality, compare, Ass'n of the Bar of City of N.Y. Formal Opinion No. 1995-10 (1995)(secret recording is per se unethical), with, N.Y.County Lawyer's Ass'n Opinion No. 696 (1993)(secret recording is not per se unethical). |
| 177. |
Cf., Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089, 1095-97 (C.D.Cal. 2002). |
| 178. |
E.g., State v. Murtagh, 169 P.3d 602, 617-18 (Alaska 2007)("undisclosed recording is not unethical"); In re Crossen, 450 Mass. 533, 558, 880 N.E.2d 352, 372 (2008) (undisclosed recording was unethical where it was part of scheme to coerce or manufacture testimony against the judge presiding over pending litigation); Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (citing ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 01-422, which states that recording without consent should be prohibited when circumstances make it unethical); United States v. Smallwood, 365 F. Supp.2d 689, 697-98 (E.D. Va. 2005) (holding that a lawyer cannot ethically record a conversation without the consent of all parties, even though doing so is not illegal under Virginia law). Declaring the new ABA opinion to be an "overcorrection," one bar association explained that secret taping should not be routine practice, but that it should be permitted if it advances a "societal good." Ass'n of the Bar of the City of New York Formal Opinion No. 2003-02 (2003). For a New York state bar opinion employing a similar line of reasoning, see, Mena v. Key Food Stores Co-operative, Inc., 758 N.Y.S.2d 246, 247-50 (N.Y. Sup. Ct. 2003) (conduct of attorney who obtained a private investigator's services for a client and instructed the client on the use of recording equipment held not to warrant severe sanctions, because there was a compelling public interest in exposing the racial discrimination that was the subject of the secret recordings); see also, S.C. Bar Ethics Advisory Op. 08-13 (Nov. 14, 2008)(noting that the S.C. ethical prohibition on undisclosed recording by attorneys, based on the earlier ABA opinion, had not been withdrawn); Tex. Ethics Op. 575 (Nov. 2006)(undisclosed recording by an attorney is not a per se violation of the Texas Disciplinary Rules of Professional Conduct); Mo. Formal Advisory Op. 123 (Mar. 8, 2006)(agreeing with ABA Formal Opinion 01-422); see generally, CRS Report R42650, Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation, by [author name scrubbed]. |
| 179. |
"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter," 18 U.S.C. 2515 (emphasis added); United States v. Chavez, 416 U.S. 562, 570 (1974); United States v. Lnu, 575 F.3d 298, 301 (3d Cir. 2009); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003). Note that suppression does not extend to unlawfully intercepted electronic communications, United States v. Amanuel, 615 F.3d 117, 125 (2d Cir. 2010); United States v. Steiger, 318 F.3d 1039, 1050-52 (11th Cir. 2003); United States v. Jones, 364 F. Supp.2d 1303, 1308-09 (D.Utah 2005); nor does it extend to evidence secured in violation the pen register/trap and trace provisions, United States v. German, 486 F.3d 849, 852-53 (5th Cir. 2007). |
| 180. |
18 U.S.C. 2510(11)("'aggrieved person' means a person who was a party to any an intercepted wire, oral, or electronic communication or a person against whom the interception was directed"); United States v. Oliva, 686 F.3d 1106, 1108-109 (9th Cir. 2012). |
| 181. |
United States v. Lomeli, 676 F.3d 734, 739 (8th Cir. 2012)(internal citations omitted)("Suppression is not justified if the facial insufficiency of the wiretap order is not more than a technical defect. According to Moore, our analysis is two tiered, first identifying the omission or defect at issue ... and second, determining whether that defect violates a core statutory requirement or whether it is a mere technical defect not warranting suppression"); see also, United States v. Lopez, 300 F.3d 46, 55-6 (1st Cir. 2002); United States v. Staffeldt, 451 F.3d 578, 582-85 (9th Cir. 2006); United States v. Gray, 521 F.3d 514, 522 (6th Cir. 2008); United States v. Foy, 641 F.3d 455, 463 (10th Cir. 2011). This is the case even where the court is clearly troubled by the government's failure to comply with the requirements of Title III, United States v. Callum, 410 F.3d 571, 579 (9th Cir. 2005)("Under the force of precedent, we uphold the challenged wiretap applications and orders. Still, we note that the Department of Justice and its officers did not cover themselves with glory in obtaining the wiretap orders at issue in this case. Title III is an exacting statute obviously meant to be followed punctiliously, yet the officers repeatedly ignored its clear requirements"). |
| 182. |
Gelbard v. United States, 408 U.S. 41, 52 (1972). |
| 183. |
United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994); United States v. Ambrosio, 898 F.Supp. 177, 187 (S.D.N.Y. 1995); United States v. Malelzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Mullen, 451 F.Supp.2d 509, 530-31 (W.D.N.Y. 2006); contra, United States v. Rice, 478 F.3d 704, 711-14 (6th Cir. 2007). Gelbard held that a grand jury witness might claim the protection of section 2515 through a refusal to answer questions based upon an unlawful wiretap notwithstanding the fact that the Fourth Amendment exclusionary rule does not apply in grand jury proceedings. Gelbard, 408 U.S. at 51-52. The good faith exception to the Fourth Amendment exclusionary rule permits the admission of evidence secured in violation of the Fourth Amendment, if the officers responsible for the breach were acting in good faith reliance upon the apparent authority of a search warrant or some like condition negating the remedial force of the rule, United States v. Leon, 468 U.S. 897, 909 (1984). |
| 184. |
United States v. Simels, 654 F.3d 161, 169-70 (2d Cir. 2011)(citing cases in accord); Culbertson v. Culbertson, 143 F.3d 825, 827-28 (4th Cir. 1998); United States v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990); United States v. Vest, 813 F.2d 477, 484 (1st Cir. 1987); cf., United States v. Crabtree, 565 F.3d 887, 891-92 (4th Cir. 2009)(noting that the Circuit's recognition of admissibility for impeachment purposes does not require recognition of a clean hands exception under which the government may admit introduce illegal wiretap evidence as long as it was not involved in the illegal interception). |
| 185. |
United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997); United States v. Panaro, 241 F.3d 1104, 1111 (9th Cir. 2001); United States v. Smith, 242 F.3d 737, 741 (7th Cir. 2001). |
| 186. |
United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996); United States v. Green, 175 F.3d 822, 830 n.3 (10th Cir. 1999); United States v. Green, 324 F.3d 375, 379 (5th Cir. 2003)(citing 4 of the 7 factors); cf., United States v. Calderin-Rodriguez, 244 F.3d 977, 986-87 (8th Cir. 2001). These seven factors have been fairly widely cited since they were first announced in United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y. 1958), rev'd on other grounds, 271 F.2d 669 (2d Cir. 1959). They are a bit formalistic for some courts who endorse a more ad hoc approach to the assessment of whether the admission of what purports to be a taped conversation will introduce fraud or confusion into the court, e.g., Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996)(McKeever "sets out a rather formal, seven step checklist for the authentication of tape recordings, and we have looked to some of the features [in the past]"); United States v. White, 116 F.3d 903, 921 (D.C.Cir. 1997)("tapes may be authenticated by testimony describing the process or system that created the tape or by testimony from parties to the conversation affirming that the tapes contained an accurate record of what was said"); United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001)("[T]his Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings"); United States v. Westmoreland, 312 F.3d 302, 310-11 (7th Cir. 2002); United States v. Dawson, 425 F.3d 389, 393 (7th Cir. 2005)("But there are no rigid rules, such as chain of custody, for authentication; all that is required is adequate evidence of genuineness. (There are such rules for electronic surveillance governed by Title III, but Title III is inapplicable to conversations that, as here, are recorded with the consent of one of the participants)"). |
| 187. |
E.g., State Analysis, Inc. v. American Financial Services Ass'n, 621 F.Supp.2d 309, 317-18 (E.D.Va. 2009); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548, 555 (S.D.N.Y. 2008). |
| 188. |
KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 905 (N.D.Cal. 2010); Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 976 (M.D.Tenn. 2008). |
| 189. |
Penrose Computer Marketgroup, Inc. v. Camin, 682 F.Supp.2d 202, 210-12 (N.D.N.Y. 2010) citing cases on each side of the debate including cases under the Computer Fraud and Abuse Act (18 U.S.C. 1030) where the "access" terms are used, e.g., Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc., 119 F.Supp.2d 1121, 1125 (W.D.Wash. 2000)("[T]he authority of the plaintiff's ... employees ended when they allegedly became agents of the defendant [although still employed by the plaintiff] ... [T]hey lost their authorization and were without authorization when they allegedly obtained and sent the proprietary information to the defendant via email"); Ass'n of Machinists and Aerospace Workers v. Werner, 390 F.Supp.2d 479, 496 (D.Md. 2005)("Because section 2701 prohibits only unauthorized access and not the misappropriation or disclosure of information, there is no violation of section 2701 for a person with authorized access to the database no matter how malicious or larcenous his intended use of that access"). |
| 190. |
KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 905-906 (N.D.Cal. 2010)("Finally, plaintiff has not established that Chen's conduct [of deleting her e-mails in her employer's system] was unauthorized. Plaintiff asserts that Chen was 'without authorization or exceeded authorization to access these e-mails on KT's e-mail server in [her] last days at KT because [she] did not have any legitimate business reasons for doing so and [is] prohibited, as a condition of their employment, from unauthorized use of KT information.' However, this claim is not supported by the evidence. As an initial matter, it appears that employees were generally authorized to use their own e-mail account.... The employment agreements cited by plaintiff in its motion only restrict use of confidential information, and plaintiff has provided no evidence that the contents of the deleted e-mails were confidential or that deleting e-mails would constitute 'use.' In addition, Chen states that there was no company policy prohibiting her from deleting her own e-mail"). In a case under the Computer Fraud and Abuse Act, that might as easily have been brought under the SCA, however, the court held that "if any conscious breach of a website's terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law 'that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet]' [and consequently is unconstitutionally vague]," United States v. Drew, 259 F.R.D. 449, 467 (C.D.Cal. 2009). |
| 191. |
Cardinal Health 414, Inc. v. Adams, 582 F.Supp. 967, 977 (M.D. Tenn. 2008)("Adams used the log-in information for another person, a former co-worker, to spy on the activities of his former company. On these facts, to argue that continued access was 'authorized' is absurd"); see also, State Analysis, Inc. v. American Financial Services Assoc., 621 F.Supp.2d 309, 318 (E.D.Va. 2009). |
| 192. |
Devine v. Kapasi, 729 F.Supp.2d 1024, 1027-28 (N.D.Ill. 2010), citing, Fraser v. Nationwide Mutual Ins. Co, 352 F.3d 107, 115 (3d Cir. 2003); In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1057 (N.D.Cal. 2012)("To state a claim under the SCA, Plaintiffs must allege that Defendants accessed without authorization 'a facility through which an electronic communication service is provided.' 18 U.S.C. 2701(a)(1). An 'electronic communication service' ('ECS') is 'any service which provides to users thereof the ability to send and receive wire or electronic communications.' 18 U.S.C. 2510(15). While the computer systems of an email provider, a bulletin board system, or an ISP are uncontroversial examples of facilities that provide electronic communications services to multiple users, less consensus surrounds the question presented here: whether an individual's computer, laptop, or mobile device fits the statutory definition of a 'facility through which an electronic communication service is provided.' The Court agrees with Defendants that it does not"). |
| 193. |
18 U.S.C. 2711(1)("As used in this chapter [18 U.S.C. 2701-2712]—(1) the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that section"); 18 U.S.C. 2510(17)("'electronic storage' means—(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication"). |
| 194. |
See e.g., KLA-Tencor Corp. v. Murphy, 717 F.Supp.2d 895, 904-905 (N.D.Cal. 2010)("As an initial matter, it is not clear to the court that e-mails on KT's server were in 'electronic storage' within the meaning of the SCA. In Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004), the Ninth Circuit held that messages remaining on an ISP's server after delivery could fall within the SCA. The court found that '[a]n obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again-if, for example, the message is accidentally erased from the user's own computer.' Id. However, 'the mere fact that a copy could serve as a backup does not mean it is stored for that purpose' Id. at 1076. The court noted that there would be instances where an ISP could hold messages not in electronic storage, such as 'messages a user has flagged for deletion from the server.' Id. In an apparent attempt to mirror Theofel language, plaintiff suggests that its server's storage of e-mail has a backup purpose because a user could 'download them again when, for instance, his or her e-mails are accidentally deleted from the computer while working in an offline mode.' Gurule SJ Decl. ¶ 7. However, plaintiff also explains that the server's software 'is configured to synchronize a user's e-mail account so that the account contains the same set of e-mails regardless of where it is accessed.' Id. ¶ 10. It seems to the court that these two purposes cannot coexist. Either the server is linked to the computer and flags for deletion a message that is deleted on the computer, or it acts as a backup and would not automatically delete messages that are deleted on a computer. Under either theory, plaintiff's SCA claim fails. Even if the system's operation is as plaintiff describes, the fact that automatic deletion does not occur in the specific situation of a message being deleted while the computer is offline does not establish that the server stores e-mails for the purposes of backup protection rather than only for purpose of synchronization"). In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1059 (N.D.Cal. 2012) ("The Court finds persuasive the reasoning in In re Doubleclick, Inc.. Privacy Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001). There, the court dismissed an SCA claim upon finding that the identification numbers for browser cookies the defendants installed on the plaintiffs' computers were not in 'electronic storage' because they resided on the plaintiff's hard drives and thus were not in temporary electronic storage, as is required by the Act. In In re DoubleClick, the district court, after considering the plain language of the statute, concluded that '[the SCA] only protects electronic communications stored for a limited time in the middle of a transmission, i.e. when an electronic communication service temporarily stores a communication while waiting to deliver it.' 154 F.Supp.2d at 512 (quoting dictionary definitions of 'temporary' and 'intermediate'). The district court concluded that '[t]he cookies' long-term residence on plaintiffs' hard drives places them outside of §2510(17)'s definition of 'electronic storage' and, hence, Title II [of the ECPA's] protection.' Id. at 511"). |
| 195. |
18 U.S.C. 2701(c). Here, the word "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," 18 U.S.C. 2510(13), 2711(1); Webapps v. Accelerize New Media, Inc., 847 F.Supp. 912, 917 (E.D.La. 2012). |
| 196. |
"(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 communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such 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," 18 U.S.C. 2511(3). |
| 197. |
18 U.S.C. 2702(a)(1), (2). |
| 198. |
18 U.S.C. 2702(a)(3). |
| 199. |
18 U.S.C. 2702(a)(1). |
| 200. |
18 U.S.C. 2702(a)(2). |
| 201. |
18 U.S.C. 2702(a)(3). |
| 202. |
18 U.S.C. 2702(b)(emphasis added). |
| 203. |
"A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—(1) as otherwise authorized in section 2703; (2) with the lawful consent of the customer or subscriber; (3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency; (5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or (6) to any person other than a governmental entity," 18 U.S.C. 2702(c). |
| 204. |
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900-903 (9th Cir. 2008), rev'd on other grounds sub nom., City of Ontario v. Quon, 130 S.Ct. 2619 (2010). |
| 205. |
Id. (ECS provider that supplied the city police department with pager service for some of its officers violated section 2702 when it provided the department with the content of the officers' pager messages). |
| 206. |
18 U.S.C. 2701-2712. |
| 207. |
The SCA also authorizes the issuance of national security letters for foreign intelligence gathering rather than law enforcement purposes, 18 U.S.C. 2709, see generally, CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, by [author name scrubbed]. |
| 208. |
18 U.S.C. 2702(b)("A provider described in subsection (a) may divulge the contents of a communication ... (7) to a law enforcement agency—(A) if the contents—(i) were inadvertently obtained by the service provider; and (ii) appear to pertain to the commission of a crime"). |
| 209. |
18 U.S.C. 2702(b)("A provider described in subsection (a) may divulge the contents of a communication ... (8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency"). |
| 210. |
18 U.S.C. 2702(c)("A provider described in subsection (a) may divulge the contents of a communication ... (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency"). |
| 211. |
18 U.S.C. 2711("As used in this chapter ... (4) the term 'governmental entity' means a department or agency of the United States or State or political subdivision thereof"); but see, United States v. Amawi, 552 F.Supp.2d 679, 680 (N.D.Ohio 2008)(the Office of the Federal Public Defender is not a "governmental entity"). |
| 212. |
Recall that "'electronic storage' means—(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication," 18 U.S.C. 2510(17). |
| 213. |
18 U.S.C. 2703(a). At least one court has held that opened web-based e-mail stored on a service provider's server is no longer is "electronic storage," because the service provider storage is not necessary for backup purposes once the e-mail has been opened (i.e., after storage is not only incidental to transmission). The original remains on the web server and the service provider is simply supplying remote storage. Consequently, a governmental entity may secure access using a subpoena, United States v. Weaver, 636 F.Supp.2d 769, 770-72 (C.D.Ill. 2009)(distinguishing and finding unpersuasive Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), thought to support a contrary view). |
| 214. |
18 U.S.C. 2703(a)(" ... A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or 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"). 18 U.S.C. 2703(b)("(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title"). |
| 215. |
Compare, 18 U.S.C. 2703(d)("A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction.... "); 18 U.S.C. 2711(3)("As used in this chapter ... (3) the term 'court of competent jurisdiction' has the meaning assigned by section 3127, and includes any Federal court within that definition, without geographic limitation"); 18 U.S.C. 3127(2)(emphasis added) ("As used in this chapter ... (2) the term "court of competent jurisdiction" means—(A) any district court of the United States (including a magistrate of such a court) or a United States Court of Appeals having jurisdiction over the offense being investigated ... "), with, 18 U.S.C. 2516(3)("Any attorney for the Government ... may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant ... an order authorizing or approving the interception of electronic communications ... "); 18 U.S.C. 2510(9)(" As used in this chapter ... 'Judge of competent jurisdiction' means—(a) a judge of a United States district court or a United States court of appeals"). |
| 216. |
United States v. Berkos, 543 F.3d 392, 397 (7th Cir. 2008), quoting 18 U.S.C. 2703(a), ("[W]hen 'a court with jurisdiction over the offense' issues an out-of-district warrant for the seizure of electronic communications, it must do so 'using the procedures described in the Federal Rules of Criminal Procedure'"); see also, 18 U.S.C. 2711(3)(above). |
| 217. |
18 U.S.C. 2705(a)(1)(A), (4). |
| 218. |
18 U.S.C. 2705(a)(1)(B), (4). |
| 219. |
18 U.S.C. 2705(a)(2), (b). |
| 220. |
18 U.S.C. 2703(d)("A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider"). |
| 221. |
United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)(internal quotation marks and citations omitted) ("Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak's emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional"); see also, In re Application of the United States, 620 F.3d 304, 313 (3d Cir. 2010)("We also conclude that this [§2703(d)] standard is a lesser one than probable cause"). |
| 222. |
United States v. Warshak, 631 F.3d at 283-88. |
| 223. |
Id. at 288-92 (exception for good faith reliance on the SCA); see also, United States v. Ferguson, 508 F.Supp.2d 7, 8-10 D.D.C. 2007)(even if a Fourth Amendment violation occurred, officers could rely in good faith on the magistrate's order issued before any court had raised the specter of constitutional suspicion which surfaced later in Warshak). |
| 224. |
18 U.S.C. 2703(f)(1)("A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process"). |
| 225. |
United States v. Warshak, 631 F.3d 266, 283, 290 n.21 (6th Cir. 2010)(internal citations omitted)("Warshak had a number of email accounts with various ISPs, including an account with NuVox Communications. In October 2004, the government formally requested that NuVox prospectively preserve the contents of any emails to or from Warshak's email account. The request was made pursuant to 18 U.S.C. §2703(f) and it instructed NuVox to preserve all future messages. NuVox acceded to the government's request and began preserving copies of Warshak's incoming and outgoing emails—copies that would not have existed absent the prospective preservation request. Per the government's instructions, Warshak was not informed that his messages were being archived. In January 2005, the government obtained a subpoena under §2703(d) and compelled NuVox to turn over the emails that it had begun preserving the previous year. In May 2005, the government served NuVox with an ex parte court order under §2703(d) that required NuVox to surrender any additional email messages in Warshak's account. In all, the government compelled NuVox to reveal the contents of approximately 27,000 emails. Warshak did not receive notice of either the subpoena or the order until May 2006.... Some courts and commentators have suggested that §2703(f) applies only retroactively. However, the language of the statute, on its face, does not compel this reading"). |
| 226. |
18 U.S.C. 2704(b)(4)("If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed"). |
| 227. |
18 U.S.C. 2704(a)(1), (2)(emphasis added)("A governmental entity acting under section 2703(b)(2) may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such service provider shall create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the governmental entity that such backup copy has been made. Such backup copy shall be created within two business days after receipt by the service provider of the subpoena or court order. (2) Notice to the subscriber or customer shall be made by the governmental entity within three days after receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a)"). |
| 228. |
18 U.S.C. 2703(c)(1). |
| 229. |
18 U.S.C. 2703(c)(2)("A provider of electronic communication service or remote computing service shall disclose to a governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment (including any credit car or bank account number), of a subscriber to or customer of such service, when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1)"); United States v. Cray, 673 F.Supp.2d 1368, 1378-379 (S.D.Ga. 2009). |
| 230. |
18 U.S.C. 2703(c)(3); In re Application of the United States, 830 F.Supp.2d 114, 127-28 (E.D.Va. 2011). |
| 231. |
See, In re Application of the United States, 733 F.Supp.2d 939, 940 n.1 (N.D.Ill. 2009)(listed cases decided up to that point). |
| 232. |
In re Application of the United States, 620 F.3d 304, 313-19 (3d Cir. 2010); see also, In re Application of the United States, 747 F.Supp.2d 827, 838-40 (S.D.Tex. 2010)(access to provider records relating to cell phone location over the course of an earlier two month period requires a warrant); In re Application of the United States, 727 F.Supp.2d 571, 583-84 (W.D.Tex. 2010)(access to provider records relating to cell phone location either historically or prospectively should be only be available under a warrant, at least until a circuit court rules otherwise). |
| 233. |
United States v. Jones, 132 S.Ct. 945 (2012). |
| 234. |
Id. at 949; id. at 957 (Alito, J., with Ginsburg, Breyer, and Kagan)(concurring in the judgment). |
| 235. |
United States v. Jones, 132 S.Ct. at 949. |
| 236. |
Id. at 964 (Alito, J., with Ginsburg, Breyer, and Kagan)(concurring in the judgment)("[T]he longer term GPS monitoring in investigations of most offenses impinges on expectations of piracy"). |
| 237. |
Id. at 945-55 (Sotomayor, J.)(concurring). |
| 238. |
See, United States v. Skinner, ___ F.3d ___, ___ (6th Cir. Aug. 14, 2012)("Justice Alito's concurrence and the majority in Jones both recognize that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. Skinner's case, however, comes nowhere near that line"); In re Application of the United States, 849 F.Supp.2d 177, 179 (D.Mass. 2012)(declining to undo district precedent concerning the collection of "cumulative historical cell site location records.... [u]ntil either the First Circuit Court of Appeals or the Supreme Court rule otherwise, or Congress enacts legislation dealing with the problem"). |
| 239. |
"The punishment for an offense under subsection (a) of this section is—(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the constitution and laws of the United States or any state—(A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and (2)(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section,"18 U.S.C. 2701(b). |
| 240. |
"(a) Cause of action—Except as provided in section 2703(e)[relating to immunity for compliance with judicial process], any provider of electronic communication service, subscriber, or customer aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity other than the United States which engaged in that violation such relief as may be appropriate. "(b) Relief—In a civil action under this section, appropriate relief includes—(1) such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection(c); and (3) a reasonable attorney's fee and other litigation costs reasonably incurred; "(c) Damages—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000.... " 18 U.S.C. 2707. To be eligible for statutory damages, a plaintiff must show actual damage, but attorneys' fees and punitive damages may be award without proof of actual damages, VanAlystyne v. Electronic Scriptorium, Ltd., 560 F.3d 199, 202 (4th Cir. 2009). |
| 241. |
"Any person who is aggrieved by any willful violation this chapter or of chapter 119 of this title [18 U.S.C. 2510-2520] ... may commence an action in United States District Court.... If ... any of the departments or agencies has violated any provision of this chapter ... the department or agency shall ... promptly initiate a proceeding to determine whether disciplinary action ... is warranted.... "18 U.S.C. 2712(a),(c). |
| 242. |
Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 976 (M.D.Tenn. 2008). |
| 243. |
United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008); United States v. Clenney, 631 F.3d 658, 667 (11th Cir. 2011); United States v. Navas, 640 F.Supp.2d 256, 262 (S.D.N.Y. 2009), rev'd on other grounds, 597 F.3d 492 (2d Cir. 2010). |
| 244. |
See e.g., United States v. Warshak, 631 F.3d 266, 282-89 (6th Cir. 2010). |
| 245. |
No liability under section 2707 accrues, however, as a consequence of aiding or abetting a provider's violation of section 2702, Freeman v. DirecTV, 457 F.3d 1001, 1009 (9th Cir. 2006). |
| 246. |
"(3) [T]he term 'pen register' means a device which records or decodes 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 provider or any device used by a provider or customer of a wire communication 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 captures 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," 18 U.S.C. 3127(3),(4). Although clone pagers are not considered pen registers, Brown v. Waddell, 50 F.3d 285, 290-91 (4th Cir. 1995), "caller id" services have been found to constitute trap and trace devices by some courts, United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995), but not others, Sparshott v. Feld Entertainment, Inc., 311 F.3d 425, 432-33 (D.C.Cir. 2003). |
| 247. |
United States v. New York Telephone Co., 434 U.S. 159 (1977). |
| 248. |
18 U.S.C. 3121-3127. |
| 249. |
"'Post-cut-through dialed digits' are any numbers dialed from a telephone after the call is initially setup or 'cut-through.' Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party. Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like. In the latter case, the digits represent communications content; in the former, they are non-content call processing numbers," In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006); see also, In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007); In re United States, 622 F.Supp.2d 411, 419-22 (S.D. Tex. 2007); In re Application of the United States, 632 F.Supp.2d 202, 203-204 (E.D.N.Y. 2008)(granting a pen register/trap and trace application that would capture post-cut-through numbers after the government assured the court that its computers would be configured to delete them upon receipt). |
| 250. |
115 Stat. 288-91 (2001). |
| 251. |
18 U.S.C. 3121 ("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.)"). |
| 252. |
18 U.S.C. 3121(b)("The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service—(1) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service; or (2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (3) where the consent of the user of that service has been obtained"). |
| 253. |
18 U.S.C. 3125(a)("Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—(1) an emergency situation exists that involves—(A) immediate danger of death or serious bodily injury to any person; (B) conspiratorial activities characteristic of organized crime; (C) an immediate threat to a national security interest; or (D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year [—] that requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and (2) there are grounds upon which an order could be entered under this chapter to authorize such installation and use [—] may have installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance with section 3123 of this title"). |
| 254. |
18 U.S.C. 3122. |
| 255. |
18 U.S.C. 3123. |
| 256. |
18 U.S.C. 3122(a), 3127(2); In re United States, 10 F.3d 931, 935-36 (2d Cir. 1993). |
| 257. |
18 U.S.C. 3125(a). |
| 258. |
18 U.S.C. 3121(b). |
| 259. |
E.g., In re Application of the United States, 849 F.Supp.2d 526 (D.Md. 2011); In re Application of the United States, 733 F.Supp.2d 939 (N.D.Ill. 2009); In re Application of the United States, 534 F.Supp.2d 585 (W.D.Pa. 2008); In re Application of the United States, 497 F.Supp.2d 301 (D. P.R. 2007); In re United States, 441 F.Supp.2d 816 (S.D. Tex. 2006); In re Application of the United States, 416 F.Supp. 390 (D.Md. 2006); In re Application of the United States, 415 F.Supp.2d 211 (W.D.N.Y. 2006); In re Application of the United States, 412 F.Supp.2d 947 (E.D.Wis. 2006); In re Application of the United States, 407 F.Supp.2d 134 (D.D.C. 2006) (each denying the application); but see, In re Application of the United States, 632 F.Supp.2d 202 (E.D.N.Y. 2008); In re Application of the United States, 509 F.Supp.2d 76 (D.Mass. 2007); In re Application of the United States, 460 F.Supp.2d 448 (S.D.N.Y. 2006); In re Application of the United States, 433 F.Supp.2d 804 (S.D. Tex. 2006); In re Application of the United States, 411 F.Supp.2d 678 (W.D.La. 2006)(each granting the application). |
| 260. |
18 U.S.C. 3121(d), 3571. |
| 261. |
18 U.S.C. 3124(e). |
| 262. |
United States v. Forrester, 512 F.3d 500, 512-13 (9th Cir. 2008); United States v. German, 486 F.3d 849, 852-53 (5th Cir. 2007); United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995); United States v. Thompson, 936 F.2d 1249, 1249-250 (11th Cir. 1991). To the extent that the unlawful use captures content, the Fourth Amendment exclusionary rule may apply, cf., In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007). |
| 263. |
Subsection 3124(d) makes the denial of a cause of action explicit for service providers and others assisting in execution of an order or emergency request. Subsection 3124(e) provides a good faith defense to civil liability on other grounds. |
| 264. |
In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.Supp.2d 876, 879, 886-87 (S.D.Tex. 2008) ("Section 3123(d)(2) provides that the 'the person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached, or applied, or who is obligated by the order to provide assistance to the applicant' shall be directed not to disclose to any other person the existence of the pen/trap or the investigation 'unless or until otherwise ordered by the court.' Again, no particular showing by the government is required to justify non-disclosure, and no minimum time period is imposed or even suggested. In fact, the 'unless' clause implies that the court may refuse to enjoin disclosure even in the first instance. In the end, the duration of any gag order remains subject to the court's discretion. * * * An indefinite non-disclosure order is tantamount to a permanent injunction of prior restraint. To the extent such an order enjoins speech beyond the life of the underlying investigation, it must be narrowly tailored to serve a compelling governmental interest in order to pass muster under the First Amendment. The governmental interests considered here—the integrity of an ongoing criminal investigation, the reputational interests of targets, and the sensitivity of investigative techniques—are not sufficiently compelling to justify a permanent gag order. And because the statutes authorizing these non-disclosure orders must be construed whenever possible in a manner that avoids constitutional infirmity, it follows that neither 18 U.S.C. §2705(b) nor §3123 may be interpreted to permit a gag order of indefinite duration"). |
| 265. |
E.g., Ariz. Rev. Stat. Ann. §13-3005; Fla. Stat. Ann. §934.31; Iowa Code Ann. §808B.10; N.H. Rv. Stat. Ann. §570-B:2; Utah Code Ann. §77-23-13. |
| 266. |
But see, Minn. Stat. Ann. §626A.391. Appendix E contains the citations of state statutes that authorized court ordered installation and use of pen registers and trap & trace devices. Appendix C lists the citations of state statutes that create a separate cause of action for unlawful interception. |
| 267. |
50 U.S.C. 1801-1861. Orders for access to tangible items, 50 U.S.C. 1861-1862, are often referred to as orders for access to business records. |
| 268. |
50 U.S.C. 1805a-1805c (repealed). |
| 269. |
50 U.S.C. 1881-1881g. |
| 270. |
50 U.S.C. 1871. |
| 271. |
50 U.S.C. 1885-1885c. |
| 272. |
50 U.S.C. 1803. |
| 273. |
Id. |
| 274. |
50 U.S.C. 1805, 1824, 1842, 1861, 1881a. |
| 275. |
50 U.S.C. 1842. |
| 276. |
50 U.S.C. 1803(e), 1861(f)(1), 1881a(h)(4). |
| 277. |
50 U.S.C. 1803(e), 1861(f)(1). |
| 278. |
50 U.S.C. 1803(b). |
| 279. |
The FISA procedures relating to wiretapping and electronic surveillance orders, 50 U.S.C. 1801-1811, and those relating to physical searches, 50 U.S.C. 1821-1829, are virtually identical and consequently are treated together here. |
| 280. |
The 2008 FISA Amendments Act explicitly granted the FISA court judges the authority to sit as a group on their own initiative or on the petition of the government when a majority of court concludes that a particular matter is exceptional significance or in order uniformity of interpretation among the members of the court, 50 U.S.C. 1803(a)(2). |
| 281. |
50 U.S.C. 1801(f). The courts have noted that, unlike surveillance under Title III, silent video surveillance falls within the purview of FISA by virtue of subsection 1801(f)(4), United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992); United States v. Mesa-Rincon, 911 F.2d 1433, 1438 (10th Cir. 1990); United States v. Biasucci, 786 F.2d 504, 508 (2d Cir. 1986). |
| 282. |
"'Foreign power' means—(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; (6) an entity that is directed and controlled by a foreign government or governments; or an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction," 50 U.S.C. 1801(a). Note that the definition of foreign power includes international terrorists groups regardless of whether any nexus to a foreign power can be shown, 50 U.S.C. 1801(a)(4) and includes agents of foreign powers that no longer exist, United States v. Squillacote, 221 F.3d 542, 554 (4th Cir. 2000) (agents of East Germany intercepted under an order granted after unification). Moreover, at least until it expires on June 1, 2015, the definition of "agent of foreign power" (50 U.S.C.1801(b)(1)(c)) includes international terrorists with no necessary connection to a foreign power or group. The FISA physical search provisions adopt by cross reference the definitions of "foreign power" and "agent of a foreign power," 50 U.S.C. 1821(1). |
| 283. |
"Minimization procedures" are defined in 50 U.S.C. 1801(h). They are essentially those procedures designed to minimize the unnecessary acquisition, retention, and dissemination of information relating to U.S. persons (American citizens, permanent resident aliens, U.S. corporations, and organizations a substantial number of whose members are Americans). Like the procedures in Title III, they are crafted to minimize the amount of "innocent" communications captured with the communications which are the target of the order and require a good faith effort on the part of the government to avoid the capture and retention of irrelevant material, United States v. Hammoud, 381 F.3d 316, 334 (4th Cir. 2004), vac'd on other grounds, 543 U.S. 1097 (2004), reinstated in pertinent part after remand, 405 F.3d 1034 (4th Cir. 2005); United States v. Rosen, 447 F.Supp.2d 538, 550-51 (E.D.Va. 2006). |
| 284. |
Section 104(a)(1)(c) of the 2008 FISA Amendments Act eliminated the requirement of a "detailed" description. |
| 285. |
Section 104(a)(1)(D) of the 2008 FISA Amendments Act authorized the President to designate the Deputy Director of the Federal Bureau of Investigation as a certifying official as well. |
| 286. |
Section 104(a)(1)(E) of the 2008 FISA Amendments Act added that the statement need only be "summary." |
| 287. |
50 U.S.C. 1804. 50 U.S.C. 1823 relating to applications for a FISA physical search order is essentially the same. Section 104(a)(1)(A) of the 2008 FISA Amendments Act eliminated the requirement that the application indicate that the Attorney General approved the application and that the President had authorized him to do so. It also eliminated the requirement that the application indicate whether more than one interception device was to be used and if so their range and the minimization procedures associated with each. Section 104(a)(2) of the 2008 FISA Amendments Act, however, repealed the language once found in 50 U.S.C. 1804(b) which, when the target of the surveillance was a foreign power, excused the inclusion of multiple device information, of a statement of the means of execution, of a statement relating to the basis for the "last resort" and foreign intelligence information certifications, and of a description of the information sought and the type of communications targeted. |
| 288. |
50 U.S.C. 1805(a); 50 U.S.C. 1824(a) is to the same effect with respect to physical search orders. |
| 289. |
"An order approving an electronic surveillance under this section shall ... (2) direct—(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance," 50 U.S.C. 1805(c)(2)(B). Effective June 1, 2015, the language in italics is repealed, P.L. 109-177, §102(b), 120 Stat. 195 (2006); P.L. 111-118, Div. B, §1004(a), 123 Stat. 3470 (2009); P.L. 111-141, §1(a), 124 Stat. 37 (2010); P.L. 112-3, §2(a), 125 Stat. 5 (2011); P.L. 112-14, §2(a), 125 Stat. 216 (2011). |
| 290. |
50 U.S.C. 1805(c)(2)(C),(D); 50 U.S.C. 1824(c)(2)(C),(D). FISA physical search orders must also direct "the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search," 50 U.S.C. 1824(c)(2)(E). The USA PATRIOT Act's amendments make it clear that those who provide such assistance are immune from civil suit, 18 U.S.C. 1805(i) ("No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other persons (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this Act for electronic surveillance or physical search"). As discussed at greater length later, the 2008 FISA Amendments Act affords service providers retroactive protection for foreign intelligence assistance provided outside the confines of FISA. |
| 291. |
50 U.S.C. 1805(c); 1824(c). |
| 292. |
50 U.S.C. 1805(f); 1824(e). |
| 293. |
50 U.S.C. 1802(a)(1),(4); 1822(a)(1), (4). |
| 294. |
50 U.S.C. 1802(a)(2),(3); 1822(a)(2), (3). |
| 295. |
"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress," 50 U.S.C. 1811. "Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress," 50 U.S.C. 1829. |
| 296. |
Over the years, however, the vast majority of courts have rejected the suggestion that FISA electronic surveillance and physical search procedures are vulnerable to constitutional attack on Fourth Amendment grounds or any other, United States v. Duka, 671 F.3d 329, 337-38 (3d Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010); In re Sealed Case, 310 F.3d 717, 737-46 (F.I.S.Ct.Rev. 2002); United States v. Damrah, 412 F.3d 618, 624-25 (6th Cir. 2005); United States v. Mubayyid, 521 F.Supp.2d 125, 135-36 (D. Mass. 2007); United States v. Benkahla, 437 F.Supp.2d 541, 554-55 (E.D.Va. 2006); contra, Mayfield v. United States, 504 F.Supp.2d 1023, 1036-43 (D. Ore. 2007), vac'd and remanded, 599 F.3d 964, (9th Cir. 2010). |
| 297. |
50 U.S.C. 1806(a), 1825(a). |
| 298. |
50 U.S.C. 1806(b), 1825(b). |
| 299. |
50 U.S.C. 1806(c),(d), 1825(c),(d). |
| 300. |
50 U.S.C. 1806(e), (f), (g), (h), 1825(e), (f), (g), (h). Consideration of a motion to suppress occurs ex parte and in camera when the government files a notice that national security would otherwise be compromised, 50 U.S.C. 1806(f); In re Grand Jury Proceedings, 347 F.3d 197, 203 (7th Cir. 2003); United States v. Damrah, 412 F.3d 618, 623-24 (6th Cir. 2005); review is the same as that afforded by the FISA court, statutory compliance; there is no authority to "second guess the executive branches certification," In re Grand Jury Proceedings, 347 F.3d 197, 204-205 (7th Cir. 2003); United States v. Campa, 529 F.3d 980, 993 (11th Cir. 2008); United States v. Amawi, 531 F.Supp.2d 832, 837 (N.D. Ohio 2008); United States v. Abu-Jihaad, 531 F.Supp.2d 299, 312 (D.Conn. 2008). |
| 301. |
50 U.S.C. 1806(I), 1825(b). |
| 302. |
50 U.S.C. 1806(j), 1825(j). |
| 303. |
|
| 304. |
50 U.S.C. 1808, 1826. |
| 305. |
18 U.S.C. 2511(2)(f). |
| 306. |
Section 2(a), P.L. 107-40, 115 Stat. 224 (2001), 50 U.S.C. 1541 note ("That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons"). |
| 307. |
H.Rept. 110-373, at 9-10 (2007), citing a letter from Assistant Attorney General William E. Moschella. |
| 308. |
50 U.S.C. 1812 ("(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. (b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code, shall constitute an additional exclusive means for the purpose of subsection (a)"). |
| 309. |
50 U.S.C. 1809, 1827. |
| 310. |
Id. The maximum amount of any fine for unlawful physical search may be a matter of some doubt. Sections 1805 and 1827 each set the maximum fine at $10,000. Section 1805 was enacted in 1978. Six years later, Congress passed general legislation that increases the maximum of all federal felonies to $250,000, 18 U.S.C. 3571(b). Moreover, it provides that a lower maximum in a criminal statute may only remain in effect if it is exempted by specific reference, 18 U.S.C. 3571(e). A decade later, Congress passed section 1827 with its $10,000 maximum. It seems likely, but by no means certain, that a court would conclude that Congress knew of the general maximum, but meant what it said when it declared that physical search violations would be punishable by a fine of not more than $10,000, rather than $250,000. |
| 311. |
50 U.S.C. 1809(b)("It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction"); see also, 50 U.S.C. 1827(b). Intelligence officers enjoy the benefit of a similar defense under Title III when they are acting in the normal course of their official duties, 18 U.S.C. 2511(2)(e). |
| 312. |
"An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred," 50 U.S.C. 1810; 50 U.S.C. 1828 affords comparable relief for the certain victims of unlawful physical searches. Victims are not entitled to injunctive relief, ACLU Foundation of Southern California v. Barr, 952 F.2d 457, 469-70 (D.C.Cir. 1992). The court did not address the question of whether conduct in violation of both FISA and Title III might be enjoined under 18 U.S.C. 2520(b)(1). The Sixth Circuit, however, has held that the proscriptions of Title III do not apply to interception in this country for foreign intelligence gathering purposes of communications between parties in the United States and those in other nations, ACLU v. National Security Agency, 493 F.3d 644, 680 (6th Cir. 2007), citing, 18 U.S.C. 2511(2)(f). |
| 313. |
50 U.S.C. 1805(h)("No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search"). |
| 314. |
50 U.S.C. 1885a(a)("Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed ... "). |
| 315. |
50 U.S.C. 1885a(a). On January 17, 2007, the Attorney General notified Congress that any subsequent electronic surveillance conducted as part of the Terrorist Surveillance Program would be conducted pursuant to FISA court approval, S.Rept. 110-209, at 4 (2007). |
| 316. |
50 U.S.C. 1885a(a)(4); 1885(6)("(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153); (B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code; (C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code; (D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored; (E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D); or (F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E)"). |
| 317. |
50 U.S.C. 1885a(a)(1)-(3), (5); 1885(7). |
| 318. |
50 U.S.C. 1885a(b), (c). |
| 319. |
50 U.S.C. 1885a(g). |
| 320. |
In re National Security Agency Telecommunications Records Litigation, 633 F.Supp.2d 949, 960-76 (N.D.Cal. 2009), aff'd in part/rev'd in part, 671 F.3d 881, 894-904 (9th Cir. 2011). The Ninth Circuit reversed only that portion of the district court opinion that dismissed claims of government misconduct under the immunity procedure, id. at 904. See also, In re National Security Agency Telecommunications Records Litigation, 669 F.3d 928, 931-33 (9th Cir. 2011)(pointing out that due process claims of governmental taking without just compensation must proceed initially under the Tucker Act and that equitable relief is not available under the Takings Clause). |
| 321. |
50 U.S.C. 1885b. |
| 322. |
50 U.S.C. 1885c. |
| 323. |
"Any person who is aggrieved by any willful violation of ... sections 106(a)[relating to the unlawful use of information acquired from electronic surveillance under the FISA], 305(a)[relating to unlawful use of information acquired under a FISA physical search order], or 405(a)[relating to unlawful use of information acquired under a pen register order] ... may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes a violation of ... the above special provisions of title 50, the Court may assess as damages—(1) actual damages, but not less than $10,000, whichever amount is greater; and (2) litigation costs, reasonably incurred," 18 U.S.C. 2712(a). |
| 324. |
Cf., Al-Haramain Islamic Foundation, Inc. v. Obama, 690 F.3d 1089, 1096 (9th Cir. 2012)(holding that the United States has not waived sovereign immunity with respect to claims under 18 U.S.C. 1810 and noting that "contrasting §1810 liability, for which sovereign immunity is not explicitly waived, with §1806 liability, for which it is, also illuminates congressional purpose.... Section 1806, combined with 18 U.S.C. 2712, renders the United States liable only for the 'use[] and disclos[ure]' of information 'by Federal officers and employees' in an unlawful manner. Section 1810, by contrast, also creates liability for the actual collection of the information in the first place ... "). |
| 325. |
"If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure," 50 U.S.C. 1806(g); the language for FISA physical search orders is similar, 1825(f); United States v. Abu-Jihaad, 630 F.3d 102, 129-31 (2d Cir. 2010); United States v. Campa, 529 F.3d 980, 993 (11th Cir. 2008). Subsection 1806(f) and its physical search counterpart §1825(g) provide: "Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." |
| 326. |
S.Rept. 95-701, at 61 (1978); 50 U.S.C. 1806(b)(" ... such information ... may only be used in a criminal proceeding with the advance authorization of the Attorney General"). |
| 327. |
When FISA required certification that the acquisition of foreign intelligence was "the" purpose for seeking a FISA surveillance order, there was some debate among the courts over how prominent the foreign intelligence purpose had to be in order to permit the evidence it unearthed under a FISA order to be used in a criminal prosecution, United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1992); United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984); United States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988); United States v. Badia, 827 F.2d 1458, 1463 (11th Cir. 1987). The USA PATRIOT Act changed "the purpose" to "a significant purpose," a change which the FISA review court concluded demands only that the government have a "measurable" foreign intelligence purpose when it seeks a FISA surveillance order, In re Sealed Case, 310 F.3d 717, 734-35 (F.I.S.Ct.Rev. 2002); see also, Seamon & Gardner, The Patriot Act and the Wall Between Foreign Intelligence and Law Enforcement, 28 Harvard Journal of Law and Public Policy 319 (2005). |
| 328. |
In re Grand Jury Subpoena, 597 F.3d 189, 197-99 (4th Cir. 2010)(noting that unlike the Title III exclusionary rule the FISA rules do not explicitly list either the grand jury proceedings or legislative proceedings as proceedings in which the ban applies). |
| 329. |
50 U.S.C. 1841-1846. |
| 330. |
50 U.S.C. 1842. |
| 331. |
50 U.S.C. 1842.(d)(2)(C). |
| 332. |
50 U.S.C. 1843. |
| 333. |
50 U.S.C. 1843(c)(2). |
| 334. |
50 U.S.C. 1845. |
| 335. |
50 U.S.C. 1846. |
| 336. |
50 U.S.C.1845. |
| 337. |
18 U.S.C. 3121(a). |
| 338. |
18 U.S.C. 3121(d), 3571. |
| 339. |
18 U.S.C. 3124(e). |
| 340. |
50 U.S.C. 1842(f). |
| 341. |
"Any person who is aggrieved by any willful violation of ... section[] 405(a) ... of the Foreign Intelligence Surveillance Act [50 U.S.C. 1845(a)(relating to the use of FISA pen register/trap and trace order information)] may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes a violation of ... the above special provision[] of title 50, the Court may assess as damages—(1) actual damages, but not less than $10,000, whichever amount is greater; and (2) litigation costs, reasonably incurred," 18 U.S.C. 2712(a). |
| 342. |
50 U.S.C. 1845(e)(1)("Any aggrieved person against whom evidence obtained or derived from the use of a pen register or trap and trace device is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, or a State or political subdivision thereof, may move to suppress the evidence obtained or derived from the use of the pen register or trap and trace device, as the case may be, on the grounds that—(A) the information was unlawfully acquired; or (B) the use of the pen register or trap and trace device, as the case may be, was not made in conformity with an order of authorization or approval under this subchapter"). |
| 343. |
50 U.S.C. 1861. |
| 344. |
50 U.S.C. 1862 (2000 ed.). |
| 345. |
Unless legislative extended, the authority reverts to its pre-USA PATRIOT Act form on June 1, 2015, 50 U.S.C. 1861 note; P.L. 109-177, §102(b), 120 Stat. 195 (2006); P.L. 112-14, §2(a), 125 Stat. 216 (2011). |
| 346. |
50 U.S.C. 1861(a). |
| 347. |
50 U.S.C. 1861(d). |
| 348. |
50 U.S.C. 1861(e). |
| 349. |
50 U.S.C. 1861(f). |
| 350. |
50 U.S.C. 1861(f)(2)(C)(iii). |
| 351. |
50 U.S.C. 1861(f)(3),(4),(5). |
| 352. |
50 U.S.C. 1861(g). |
| 353. |
50 U.S.C. 1861(h). |
| 354. |
50 U.S.C. 1861(a)(3). |
| 355. |
P.L. 109-177, §106A, 120 Stat. 200-202 (2006). |
| 356. |
CRS Report R42725, Reauthorization of the FISA Amendments Act, by [author name scrubbed]. |
| 357. |
Sections 1881a-1881g expire on December 31, 2017, P.L. 110-261, §403(b)(1), 122 Stat. 2474 (2008). |
| 358. |
"United States person" includes United States citizens, permanent resident aliens of the United States, corporations incorporated in the United States, and unincorporated associates made up of a substantial number of U.S. citizens, 50 U.S.C. 1881(a), 1801(j). |
| 359. |
50 U.S.C. 1881b. |
| 360. |
50 U.S.C. 1881c. |
| 361. |
50 U.S.C. 1881a(a), (i)(3), (c)(2). |
| 362. |
50 U.S.C. 1881a(g)(2). |
| 363. |
Id. |
| 364. |
50 U.S.C. 1881a(g)(4). |
| 365. |
50 U.S.C. 1881a(b). |
| 366. |
50 U.S.C. 1881a(d), (e), (f). |
| 367. |
50 U.S.C. 1881a(e). |
| 368. |
50 U.S.C. 1881a(d). |
| 369. |
50 U.S.C. 1881a(d), (e), (i). |
| 370. |
50 U.S.C. 1881a(f). |
| 371. |
50 U.S.C. 1881(h)(1)-(3). |
| 372. |
50 U.S.C. 1881(h)(4). |
| 373. |
50 U.S.C. 1881(h)(5). |
| 374. |
50 U.S.C. 1881a(h)(6), (i). |
| 375. |
50 U.S.C. 1881e(a). |
| 376. |
50 U.S.C. 1881b(b). |
| 377. |
50 U.S.C. 1881b(c)(1). An American may not be considered a foreign power or its agent, officer or employee based solely on activities protected by the First Amendment, 50 U.S.C. 1881b(c)(2). |
| 378. |
50 U.S.C. 1881b(c)(3). |
| 379. |
50 U.S.C. 1881b(f). |
| 380. |
50 U.S.C. 1881b(c)(4). |
| 381. |
50 U.S.C. 1881b(c)(5). |
| 382. |
50 U.S.C. 1881b(e). |
| 383. |
50 U.S.C. 1881b(d)(1). |
| 384. |
Id. |
| 385. |
50 U.S.C. 1881b(d)(4). |
| 386. |
50 U.S.C. 1881e(a). |
| 387. |
United States v. Bin Laden, 126 F.Supp.2d 264, 272 n.8 (S.D.N.Y. 2000)(FISA electronic surveillance and physical search); United States v. Peterson, 812 F.2d 486, 492 (9th Cir. 1987)(Title III); United States v. Cotroni, 527 F.2d 708, 711 (2d Cir. 1975)(Title III). |
| 388. |
50 U.S.C. 1881c(a)(3)(B)("If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 703 [1881b], the acquisition may only be conducted if authorized under section 703 or in accordance with another provision of this Act other than this section"). 50 U.S.C. 1881d("(a) Joint applications and orders.—If an acquisition targeting a United States person under section 703 or 704 is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 703(a)(1) or 704(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 703(b) and 704(b), orders under sections 703(c) and 704(c), as appropriate. (b) Concurrent authorization.—If an order authorizing electronic surveillance or physical search has been obtained under section 105 or 304, the Attorney General may authorize, for the effective period of that order, without an order under section 703 or 704, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States"). |
| 389. |
50 U.S.C. 1881c(a). |
| 390. |
50 U.S.C. 1881c(a)(3). |
| 391. |
50 U.S.C. 1881c(a)(2). |
| 392. |
Amnesty International USA v. McConnell, 646 F.Supp.2d 633, 635 (S.D.N.Y. 2009). |
| 393. |
Amnesty International USA v. Clapper, 638 F.3d 118, 122 (2d Cir. 2011), reh'g en banc den'd, 667 F.3d 163 (2d Cir. 2011). |
| 394. |
Clapper v. Amnesty International USA, 132 S.Ct. 2431 (2012). |
| 395. |
50 U.S.C. 1871(b). |
| 396. |
That is, the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence as well as the House and Senate Judiciary Committees, 50 U.S.C. 1871(a). |
| 397. |
50 U.S.C. 1871(a), (c). |