Advanced Criminal Investigations and Intelligence Operations

Home > Nonfiction > Advanced Criminal Investigations and Intelligence Operations > Page 39
Advanced Criminal Investigations and Intelligence Operations Page 39

by Unknown


  or agency involved determines that disciplinary action is not war-

  ranted, he or she shall notify the Inspector General with jurisdic-

  tion over the department or agency concerned and shall provide the

  Inspector General with the reasons for such determination.

  (g) Improper disclosure is violation—Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of

  information beyond the extent permitted by section 2517 is a viola-

  tion of this chapter for purposes of section 2520(a).

  § 2521. Injunction against Illegal Interception

  Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or will constitute a felony violation of this chapter, the Attorney General may initiate a civil action in a district court of the United States to enjoin such violation. The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.

  § 2522. Enforcement of the Communications

  Assistance for Law Enforcement Act

  (a) Enforcement by court issuing surveil ance order—If a court authorizing an interception under this chapter, a State statute, or the

  Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et

  seq.) or authorizing use of a pen register or a trap and trace device

  under chapter 206 or a State statute finds that a telecommunica-

  tions carrier has failed to comply with the requirements of the

  Communications Assistance for Law Enforcement Act, the court

  292

  Appendix A: Electronic Surveillance Law

  may, in accordance with section 108 of such Act, direct that the car-

  rier comply forthwith and may direct that a provider of support ser-

  vices to the carrier or the manufacturer of the carrier’s transmission

  or switching equipment furnish forthwith modifications necessary

  for the carrier to comply.

  (b) Enforcement upon application by Attorney General—The Attorney General may, in a civil action in the appropriate United States district court, obtain an order, in accordance with section 108 of the

  Communications Assistance for Law Enforcement Act, directing

  that a telecommunications carrier, a manufacturer of telecommuni-

  cations transmission or switching equipment, or a provider of tele-

  communications support services comply with such Act.

  (c) Civil penalty—

  (1)

  In general—A court issuing an order under this section against

  a telecommunications carrier, a manufacturer of telecommuni-

  cations transmission or switching equipment, or a provider of

  telecommunications support services may impose a civil pen-

  alty of up to $10,000 per day for each day in violation after the

  issuance of the order or after such future date as the court may

  specify.

  (2)

  Considerations—In determining whether to impose a civil pen-

  alty and in determining its amount, the court shall take into

  account—

  (A) the nature, circumstances, and extent of the violation;

  (B) the violator’s ability to pay, the violator’s good faith efforts to

  comply in a timely manner, any effect on the violator’s ability

  to continue to do business, the degree of culpability, and the

  length of any delay in undertaking efforts to comply; and

  (C) such other matters as justice may require.

  (d) Definitions—As used in this section, the terms defined in section 102

  of the Communications Assistance for Law Enforcement Act have

  the meanings provided, respectively, in such section.

  Stored Wire and Electronic Communications and

  Transactional Records Access (18 U.S.C. §§ 2701–2712)

  Stored Wire and Electronic Communications

  and

  Transactional Records Access

  (18 U.S.C. 2702, 2707, and 2708)

  18 U.S.C. 2702

  Disclosure of Contents

  Appendix A: Electronic Surveillance Law

  293

  § 2702. Disclosure of Contents

  (a) Prohibitions—Except as provided in subsection (b)—

  (1) a person or entity providing an electronic communication ser-

  vice to the public shall not knowingly divulge to any person or

  entity the contents of a communication while in electronic stor-

  age by that service; and

  (2) a person or entity providing remote computing service to the

  public shall not knowingly divulge to any person or entity the

  contents of any communication which is carried or maintained

  on that service—

  (A) on behalf of, and received by means of electronic transmis-

  sion from (or created by means of computer processing of

  communications received by means of electronic transmis-

  sion from), a subscriber or customer of such service; and

  (B) solely for the purpose of providing storage or computer pro-

  cessing services to such subscriber or customer, if the provider

  is not authorized to access the contents of any such commu-

  nications for purposes of providing any services other than

  storage or computer processing; and

  (3) a provider of remote computing service or electronic communi-

  cation service to the public shall not knowingly divulge a record

  or other information pertaining to a subscriber to or customer

  of such service (not including the contents of communications

  covered by paragraph (1) or (2)) to any governmental entity.

  (b) Exceptions—A person or entity may divulge the contents of a

  communication—

  (1) to an addressee or intended recipient of such communication or

  an agent of such addressee or intended recipient;

  (2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;

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

  intended recipient of such communication, or the subscriber in

  the case of remote computing service;

  (4) to a person employed or authorized or whose facilities are used to

  forward such communication to its destination;

  (5) as may be necessarily incident to the rendition of the service or

  to the protection of the rights or property of the provider of that

  service; or

  (6) to a law enforcement agency—

  (A) if the contents—

  (i) were inadvertently obtained by the service provider; and

  (ii) appear to pertain to the commission of a crime; or

  294

  Appendix A: Electronic Surveillance Law

  (B) if required by section 227 of the Crime Control Act of 1990

  [42 U.S.C.A S 13032].

  (C) if the provider reasonably believes that an emergency involving

  immediate danger of death or serious physical injury to any per-

  son requires disclosure of the information without delay.

  (c) Exceptions for disclosure of customer records. A provider described

  in subsection (a) may divulge a record or
other information pertaining

  to a subscriber to or customer of such service (not including the con-

  tents of communications covered by subsection (a)(1) or (a)(2))—

  (1) as otherwise authorized in section 2703;

  (2) with the lawful consent of the customer or subscriber;

  (3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

  (4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or

  (5) to any person other than a governmental entity.

  § 2703 (c) Authorization to Release (AT&T)

  18 U.S.C. 2707

  § 2707. Civil Action

  (a) Cause of Action—Except as provided in section 2703 (e), any provider of electronic communication service, subscriber, or other person aggrieved

  by any violation of this chapter in which the conduct constituting the

  violation is engaged in with a knowing or intentional state of mind may,

  in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

  (b) Relief—In a civil action under this section, appropriate relief includes—

  (1) such preliminary and other equitable or declaratory relief as may

  be appropriate;

  (2) damages under subsection (c); and

  (3) a reasonable attorney’s fee and other litigation costs reasonably

  incurred.

  (c) Damages—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff

  and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of

  $1,000. If the violation is willful or intentional, the court may assess

  punitive damages. In the case of a successful action to enforce liabil-

  ity under this section, the court may assess the costs of the action,

  together with reasonable attorney fees determined by the court.

  Appendix A: Electronic Surveillance Law

  295

  (d) Administrative Discipline—If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and

  the court or appropriate department or agency finds that the cir-

  cumstances surrounding the violation raise serious questions about

  whether or not an officer or employee of the United States acted

  willfully or intentionally with respect to the violation, the depart-

  ment or agency shall, upon receipt of a true and correct copy of

  the decision and findings of the court or appropriate department

  or agency promptly initiate a proceeding to determine whether dis-

  ciplinary action against the officer or employee is warranted. If the

  head of the department or agency involved determines that disci-

  plinary action is not warranted, he or she shall notify the Inspector

  General with jurisdiction over the department or agency concerned

  and shall provide the Inspector General with the reasons for such

  determination.

  (e) Defense—A good faith reliance on—

  (1) a court warrant or order, a grand jury subpoena, a legisla-

  tive authorization, or a statutory authorization (including a

  request of a governmental entity under section 2703 (f) of this

  title);

  (2) a request of an investigative or law enforcement officer under sec-

  tion 2518 (7) of this title; or

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

  mitted the conduct complained of; is a complete defense to

  any civil or criminal action brought under this chapter or any

  other law.

  (f) Limitation—A civil action under this section may not be com-

  menced later than two years after the date upon which the claim-

  ant first discovered or had a reasonable opportunity to discover the

  violation.

  (g) Improper Disclosure—Any willful disclosure of a “record”, as that term is defined in section 552a (a) of title 5, United States Code,

  obtained by an investigative or law enforcement officer, or a govern-

  mental entity, pursuant to section 2703 of this title, or from a device

  installed pursuant to section 3123 or 3125 of this title, that is not a

  disclosure made in the proper performance of the official functions

  of the officer or governmental entity making the disclosure, is a vio-

  lation of this chapter. This provision shall not apply to information

  previously lawfully disclosed (prior to the commencement of any

  civil or administrative proceeding under this chapter) to the public

  by a Federal, State, or local governmental entity or by the plaintiff in

  a civil action under this chapter.

  296

  Appendix A: Electronic Surveillance Law

  § 2708. Exclusivity of Remedies

  The remedies and sanctions described in this chapter are the only judi-

  cial remedies and sanctions for nonconstitutional violations of this

  chapter.

  Last modified: April 13, 2006

  The Pen Register and Trap and Trace

  Act (18 U.S.C. §§ 3121–3127)

  18 U.S.C. § 3121. General Prohibition on Pen Register

  and Trap and Trace Device Use; Exception

  (a) In General. Except as provided in this section, no person may install or use a pen register or a trap and trace device without

  first obtaining a court order under section 3123 of this title or under the Foreign Intel igence Surveil ance Act of 1978 (50 U.S.C.

  1801 et seq.).

  (b) Exception. The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a

  provider of electronic or wire communication service

  (1) relating to the operation, maintenance, and testing of a wire or

  electronic communication service or to the protection of the

  rights or property of such provider, or to the protection of

  users of that service from abuse of service or unlawful use of

  service; or

  (2) to record the fact that a wire or electronic communication was

  initiated or completed in order to protect such provider, another

  provider furnishing service toward the completion of the wire

  communication, or a user of that service, from fraudulent,

  unlawful or abusive use of service; or

  (3) where the consent of the user of that service has been obtained.

  (c) Limitation. A government agency authorized to install and use a pen register or trap and trace device under this chapter or under

  State law shall use technology reasonably available to it that restricts

  the recording or decoding of electronic or other impulses to the

  dialing, routing, addressing, and signaling information utilized in

  the processing and transmitting of wire or electronic communi-

  cations so as not to include the contents of any wire or electronic

  communications.

  (d) Penalty. Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than 1 year, or both.

  Appendix A: Electronic Surveillance Law

  297

  18 U.S.C. § 3122. Application for an Order for a

  Pen Register or a Trap and Trace Device


  (a) Application.

  (1) An attorney for the Government may make application for an

  order or an extension of an order under section 3123 of this title

  authorizing or approving the installation and use of a pen reg-

  ister or a trap and trace device under this chapter, in writing

  under oath or equivalent affirmation, to a court of competent

  jurisdiction.

  (2) Unless prohibited by State law, a State investigative or law enforcement officer may make application for an order or an extension

  of an order under section 3123 of this title authorizing or approv-

  ing the installation and use of a pen register or a trap and trace

  device under this chapter, in writing under oath or equivalent

  affirmation, to a court of competent jurisdiction of such State.

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

  (1) the identity of the attorney for the Government or the State law

  enforcement or investigative officer making the application and

  the identity of the law enforcement agency conducting the inves-

  tigation; and

  (2) a certification by the applicant that the information likely to be

  obtained is relevant to an ongoing criminal investigation being

  conducted by that agency.

  § 3123. Issuance of an Order for a Pen

  Register or a Trap and Trace Device

  (a) In General.

  (1)

  Attorney for the Government—Upon an application made under

  section 3122 (a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace

  device anywhere within the United States, if the court finds that

  the attorney for the Government has certified to the court that

  the information likely to be obtained by such installation and

  use is relevant to an ongoing criminal investigation. The order,

  upon service of that order, shall apply to any person or entity pro-

 

‹ Prev