by Unknown
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 con-
tents of any wire, oral, or electronic communication or evidence
derived there from under subsection (3) of section 2517.
(b) Applications made and orders granted under this chapter
shall be sealed by the judge. Custody of the applications and
orders shall be wherever the judge directs. Such applications
and orders shall be disclosed only upon a showing of good
cause before a judge of competent jurisdiction and shall not be
destroyed except on order of the issuing or denying judge, and
in any event shall be kept for ten years.
(c) Any violation of the provisions of this subsection may be pun-
ished as contempt of the issuing or denying judge.
(d) Within a reasonable time but not later than ninety days after the
filing of an application for an order of approval under section
2518(7)(b) which is denied or the termination of the period of an
order or extensions thereof, the issuing or denying judge shall
cause to be served, on the persons named in the order or the
application, and such other parties to intercepted communica-
tions 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 discre-
tion 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 jus-
tice. On an ex parte showing of good cause to a judge of com-
petent 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 there
from shall not be received in evidence or otherwise disclosed
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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 chap-
ter, or evidence derived there from, 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 pro-
ceeding 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 there from, 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 there from as the judge
determines to be in the interests of justice.
(b) In addition to any other right to appeal, the United States shal
have the right to appeal from an order granting a motion to sup-
press made under paragraph (a) of this subsection, or the denial of
an application for an order of approval, if the United States attor-
ney shall certify to the judge or other official granting such motion
or denying such application that the appeal is not taken for pur-
poses 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.
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287
(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 enforce-
ment 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 communi-
cations are to be intercepted; and
(i i) 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 com-
mitting 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
<
br /> made; and
(iv) the order authorizing or approving the interception is
limited to interception only for such time as it is reason-
able to presume that the person identified in the appli-
cation 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)(i ) and (3)(d) of this sec-
tion 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 elec-
tronic communications service that has received an order as provided
for in subsection (11)(b) may move the court to modify or quash the
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order on the ground that its assistance with respect to the interception
cannot be performed in a timely or reasonable fashion. The court, upon
notice to the government, shall decide such a motion expeditiously.
§ 2519. Reports Concerning Intercepted Wire,
Oral, or Electronic Communications
(1) Within thirty days after the expiration of an order (or each exten-
sion thereof) entered under section 2518, or the denial of an order
approving an interception, the issuing or denying judge shall report
to the Administrative Office of the U.S. 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 require-
ments 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 com-
munications were to be intercepted.
(2) In January of each year, the Attorney General, an Assistant Attorney
General specially designated by the Attorney General, or the prin-
cipal 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 U.S. Courts—
(a) the information required by paragraphs (a) through (g) of sub-
section (1) of this section with respect to each application for an
order or extension made during the preceding calendar year;
(b) a general description of the interceptions made under such
order or extension, including (i) the approximate nature and
frequency of incriminating communications intercepted, (ii)
the approximate nature and frequency of other communica-
tions intercepted, (iii) the approximate number of persons
whose communications were intercepted, (iv) the number
of orders in which encryption was encountered and whether
such encryption prevented law enforcement from obtaining
Appendix A: Electronic Surveillance Law
289
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 April of each year the Director of the Administrative Office of
the United States Courts shall transmit to the Congress a full and
complete report concerning the number of applications for orders
authorizing or approving the interception of wire, oral, or elec-
tronic communications pursuant to this chapter and the number
of orders and extensions granted or denied pursuant to this chap-
ter 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.
§ 2520. Recovery of Civil Damages Authorized
(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 appro-
priate cases; and
(3) a reasonable attorney’s fee and other litigation costs reasonably
incurred.
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(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 com-
munication 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 pur-
pose 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 previ-
ously been enjoined under section 2511(5) and has not been
found liable in a prior civil action under this section, the
court shall assess the greater of the sum of actual damages
suffered by the plaintiff, or statutory damages of not less
than $50 and not more than $500.
(B) If, on one prior occasion, the person who engaged in that
conduct has been enjoined under section 2511(5) or has
been fo
und 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
Appendix A: Electronic Surveillance Law
291
agencies has violated any provision of this chapter, and the court or
appropriate department or agency finds that the circumstances sur-
rounding the violation raise serious questions about whether or not
an officer or employee of the United States acted willfully or inten-
tionally 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 initi-
ate a proceeding to determine whether disciplinary action against
the officer or employee is warranted. If the head of the department