18 U.S.C. § 2705 — Delayed notice

Page 663 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2705 ty to the subscriber or customer under sub- section (a)(2) of this section, such subscriber or customer may file a motion to quash such sub- poena 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 main- tained for him have been sought; and (B) stating the applicant’s reasons for be- lieving that the records sought are not rel- evant to a legitimate law enforcement inquiry or that there has not been substantial compli- ance 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 pur- poses 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 sub- section, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity in- cludes in its response the reasons which make in camera review appropriate. If the court is un- able 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 re- sponse. (4) If the court finds that the applicant is not the subscriber or customer for whom the com- munications sought by the governmental entity are maintained, or that there is a reason to be- lieve that the law enforcement inquiry is legiti- mate and that the communications sought are relevant to that inquiry, it shall deny the mo- tion or application and order such process en- forced. If the court finds that the applicant is the subscriber or customer for whom the com- munications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are rel- evant to a legitimate law enforcement inquiry, or that there has not been substantial compli- ance with the provisions of this chapter, it shall order the process quashed. (5) A court order denying a motion or applica- tion under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1863.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or exten- sion, applicable only with respect to court orders or ex- tensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title. § 2705. Delayed notice (a) DELAY OF NOTIFICATION.—(1) A govern- mental 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 notifica- tion 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 be- lieve that notification of the existence of the court order may have an adverse result de- scribed in paragraph (2) of this subsection; or (B) where an administrative subpoena au- thorized by a Federal or State statute or a Federal or State grand jury subpoena is ob- tained, 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 notifica- tion 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 para- graph (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 evi- dence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an in- vestigation 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 pro- vided 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 na- ture of the law enforcement inquiry; and (B) informs such customer or subscriber— (i) that information maintained for such customer or subscriber by the service pro- Page 664 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2706 vider named in such process or request was supplied to or requested by that govern- mental 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 pur- suant to which that delay was made; and (iv) which provision of this chapter al- lowed such delay. (6) As used in this subsection, the term ‘‘super- visory 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 pros- ecuting attorney’s headquarters or regional of- fice. (b) PRECLUSION OF NOTICE TO SUBJECT OF GOV- ERNMENTAL ACCESS.—A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under sec- tion 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order com- manding a provider of electronic communica- tions service or remote computing service to whom a warrant, subpoena, or court order is di- rected, for such period as the court deems appro- priate, not to notify any other person of the ex- istence of the warrant, subpoena, or court order. The court shall enter such an order if it deter- mines that there is reason to believe that notifi- cation 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 evi- dence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an inves- tigation or unduly delaying a trial. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1864.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or exten- sion, applicable only with respect to court orders or ex- tensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title. § 2706. Cost reimbursement (a) PAYMENT.—Except as otherwise provided in subsection (c), a governmental entity obtaining the contents of communications, records, or other information under section 2702, 2703, or 2704 of this title shall pay to the person or enti- ty assembling or providing such information a fee for reimbursement for such costs as are rea- sonably necessary and which have been directly incurred in searching for, assembling, reproduc- ing, or otherwise providing such information. Such reimbursable costs shall include any costs due to necessary disruption of normal oper- ations of any electronic communication service or remote computing service in which such in- formation 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 enti- ty 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 informa- tion 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 ob- tained under section 2703 of this title. The court may, however, order a payment as described in subsection (a) if the court determines the infor- mation required is unusually voluminous in na- ture or otherwise caused an undue burden on the provider. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1866; amended Pub. L. 100–690, title VII, § 7061, Nov. 18, 1988, 102 Stat. 4404.) Editorial Notes AMENDMENTS 1988—Subsec. (c). Pub. L. 100–690 inserted heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or exten- sion, applicable only with respect to court orders or ex- tensions made after such effective date, see section 202 of Pub. L. 99–508, set out as a note under section 2701 of this title. § 2707. Civil action (a) CAUSE OF ACTION.—Except as provided in section 2703(e), any provider of electronic com- munication 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 sec- tion, 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 liti- gation costs reasonably incurred. (c) DAMAGES.—The court may assess as dam- ages 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 en- titled 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