18 U.S.C. § 2510 — Definitions

Page 629 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2510 1 So in original. The period probably should be a semicolon. Sec. 2516. Authorization for interception of wire, oral, or electronic communications. 2517. Authorization for disclosure and use of inter- cepted wire, oral, or electronic communica- tions. 2518. Procedure for interception of wire, oral, or electronic communications. 2519. Reports concerning intercepted wire, oral, or electronic communications. 2520. Recovery of civil damages authorized. 2521. Injunction against illegal interception. 2522. Enforcement of the Communications Assist- ance for Law Enforcement Act. 2523. Executive agreements on access to data by foreign governments. Editorial Notes AMENDMENTS 2018—Pub. L. 115–141, div. V, § 105(b), Mar. 23, 2018, 132 Stat. 1224, added item 2523. 1994—Pub. L. 103–414, title II, § 201(b)(3), Oct. 25, 1994, 108 Stat. 4290, added item 2522. 1988—Pub. L. 100–690, title VII, § 7035, Nov. 18, 1988, 102 Stat. 4398, substituted ‘‘wire, oral, or electronic’’ for ‘‘wire or oral’’ in items 2511, 2512, 2513, 2516, 2517, 2518, and 2519. 1986—Pub. L. 99–508, title I, §§ 101(c)(2), 110(b), Oct. 21, 1986, 100 Stat. 1851, 1859, inserted ‘‘AND ELECTRONIC COMMUNICATIONS’’ in chapter heading and added item 2521. 1970—Pub. L. 91–452, title II, § 227(b), Oct. 15, 1970, 84 Stat. 930, struck out item 2514 ‘‘Immunity of wit- nesses’’, which section was repealed four years fol- lowing the sixtieth day after Oct. 15, 1970. 1968—Pub. L. 90–351, title III, § 802, June 19, 1968, 82 Stat. 212, added chapter 119 and items 2510 to 2520. § 2510. Definitions 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 com- munications 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) fur- nished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign commu- nications or communications affecting inter- state 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 cir- cumstances 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 Common- wealth of Puerto Rico, and any territory or possession of the United States; (4) ‘‘intercept’’ means the aural or other ac- quisition of the contents of any wire, elec- tronic, or oral communication through the use of any electronic, mechanical, or other de- vice.1 (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 com- munication 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 busi- ness; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an in- vestigative 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, part- nership, association, joint stock company, trust, or corporation; (7) ‘‘Investigative or law enforcement offi- cer’’ 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 pros- ecution of such offenses; (8) ‘‘contents’’, when used with respect to any wire, oral, or electronic communication, includes any information concerning the sub- stance, purport, or meaning of that commu- nication; (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 au- thorizing interceptions of wire, oral, or elec- tronic communications; (10) ‘‘communication common carrier’’ has the meaning given that 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 com- munications system used for the electronic storage and transfer of funds; Page 630 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2510 (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 commu- nications, and any computer facilities or re- lated 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 pub- lic’’ means, with respect to a radio commu- nication, that such communication is not— (A) scrambled or encrypted; (B) transmitted using modulation tech- niques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such commu- nication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission; (D) transmitted over a communication system provided by a common carrier, un- less the communication is a tone only pag- ing 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 Com- munications Commission, unless, in the case of a communication transmitted on a fre- quency 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 inci- dental to the electronic transmission there- of; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such com- munication; (18) ‘‘aural transfer’’ means a transfer con- taining 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 con- cerning 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 international terrorism by a foreign power or an agent of a foreign power; or (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (B) information, whether or not con- cerning 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 pro- tected computer without authorization and thus has no reasonable expectation of pri- vacy 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 pro- tected computer. (Added Pub. L. 90–351, title III, § 802, June 19, 1968, 82 Stat. 212; amended Pub. L. 99–508, title I, § 101(a), (c)(1)(A), (4), Oct. 21, 1986, 100 Stat. 1848, 1851; Pub. L. 103–414, title II, §§ 202(a), 203, Oct. 25, 1994, 108 Stat. 4290, 4291; Pub. L. 104–132, title VII, § 731, Apr. 24, 1996, 110 Stat. 1303; Pub. L. 107–56, title II, §§ 203(b)(2), 209(1), 217(1), Oct. 26, 2001, 115 Stat. 280, 283, 290; Pub. L. 107–108, title III, § 314(b), Dec. 28, 2001, 115 Stat. 1402; Pub. L. 107–273, div. B, title IV, § 4002(e)(10), Nov. 2, 2002, 116 Stat. 1810.) Editorial Notes REFERENCES IN TEXT Section 3 of the Communications Act of 1934, referred to in par. (10), is classified to section 153 of Title 47, Telecommunications. AMENDMENTS 2002—Par. (10). Pub. L. 107–273 substituted ‘‘has the meaning given that term in section 3 of the Commu- nications Act of 1934;’’ for ‘‘shall have the same mean- ing which is given the term ‘common carrier’ by sec- tion 153(h) of title 47 of the United States Code;’’. 2001—Par. (1). Pub. L. 107–56, § 209(1)(A), struck out ‘‘and such term includes any electronic storage of such communication’’ before semicolon at end. Par. (14). Pub. L. 107–56, § 209(1)(B), inserted ‘‘wire or’’ after ‘‘transmission of’’. Par. (19). Pub. L. 107–108 inserted ‘‘, for purposes of section 2517(6) of this title,’’ before ‘‘means’’ in intro- ductory provisions. Pub. L. 107–56, § 203(b)(2), added par. (19). Pars. (20), (21). Pub. L. 107–56, § 217(1), added pars. (20) and (21). 1996—Par. (12)(D). Pub. L. 104–132, § 731(1), added sub- par. (D). Par. (16)(F). Pub. L. 104–132, § 731(2), struck out sub- par. (F) which read as follows: ‘‘an electronic commu- nication;’’. 1994—Par. (1). Pub. L. 103–414, § 202(a)(1), struck out before semicolon at end ‘‘, but such term does not in- clude the radio portion of a cordless telephone commu- nication that is transmitted between the cordless tele- phone handset and the base unit’’. Par. (12). Pub. L. 103–414, § 202(a)(2), redesignated sub- pars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A) which read as follows: ‘‘the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;’’. Page 631 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2510 Par. (16)(F). Pub. L. 103–414, § 203, added subpar. (F). 1986—Par. (1). Pub. L. 99–508, § 101(a)(1), substituted ‘‘any aural transfer’’ for ‘‘any communication’’, in- serted ‘‘(including the use of such connection in a switching station)’’ after ‘‘reception’’, struck out ‘‘as a common carrier’’ after ‘‘person engaged’’, and inserted ‘‘or communications affecting interstate or foreign commerce and such term includes any electronic stor- age of such communication, but such term does not in- clude the radio portion of a cordless telephone commu- nication that is transmitted between the cordless tele- phone handset and the base unit’’ before the semicolon at end. Par. (2). Pub. L. 99–508, § 101(a)(2), inserted ‘‘, but such term does not include any electronic communication’’ before the semicolon at end. Par. (4). Pub. L. 99–508, § 101(a)(3), inserted ‘‘or other’’ after ‘‘aural’’ and ‘‘, electronic,’’ after ‘‘wire’’. Par. (5). Pub. L. 99–508, § 101(a)(4), (c)(1)(A), (4), sub- stituted ‘‘wire, oral, or electronic’’ for ‘‘wire or oral’’ in introductory provisions, substituted ‘‘provider of wire or electronic communication service’’ for ‘‘communica- tions common carrier’’ in subpars. (a)(i) and (ii), and inserted ‘‘or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business’’ before the semi- colon in subpar. (a)(i). Par. (8). Pub. L. 99–508, § 101(a)(5), (c)(1)(A), sub- stituted ‘‘wire, oral, or electronic’’ for ‘‘wire or oral’’ and struck out ‘‘identity of the parties to such commu- nication or the existence,’’ after ‘‘concerning the’’. Pars. (9)(b), (11). Pub. L. 99–508, § 101(c)(1)(A), sub- stituted ‘‘wire, oral, or electronic’’ for ‘‘wire or oral’’. Pars. (12) to (18). Pub. L. 99–508, § 101(a)(6), added pars. (12) to (18). Statutory Notes and Related Subsidiaries TERMINATION DATE OF 2001 AMENDMENT Pub. L. 107–56, title II, § 224, Oct. 26, 2001, 115 Stat. 295, as amended by Pub. L. 109–160, § 1, Dec. 30, 2005, 119 Stat. 2957; Pub. L. 109–170, § 1, Feb. 3, 2006, 120 Stat. 3, which provided that title II of Pub. L. 107–56 and the amend- ments made by that title would cease to have effect on Mar. 10, 2006, with certain exceptions, was repealed by Pub. L. 109–177, title I, § 102(a), Mar. 9, 2006, 120 Stat. 194. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–508, title I, § 111, Oct. 21, 1986, 100 Stat. 1859, provided that: ‘‘(a) IN GENERAL.—Except as provided in subsection (b) or (c), this title and the amendments made by this title [enacting sections 2521 and 3117 of this title, amending this section and sections 2232, 2511 to 2513, and 2516 to 2520 of this title, and enacting provisions set out as notes under this section] shall take effect 90 days after the date of the enactment of this Act [Oct. 21, 1986] and shall, in the case of conduct pursuant to a court order or extension, apply only with respect to court orders or extensions made after this title takes effect. ‘‘(b) SPECIAL RULE FOR STATE AUTHORIZATIONS OF INTERCEPTIONS.—Any interception pursuant to section 2516(2) of title 18 of the United States Code which would be valid and lawful without regard to the amendments made by this title shall be valid and lawful notwith- standing such amendments if such interception occurs during the period beginning on the date such amend- ments take effect and ending on the earlier of— ‘‘(1) the day before the date of the taking effect of State law conforming the applicable State statute with chapter 119 of title 18, United States Code, as so amended; or ‘‘(2) the date two years after the date of the enact- ment of this Act [Oct. 21, 1986]. ‘‘(c) EFFECTIVE DATE FOR CERTAIN APPROVALS BY JUS- TICE DEPARTMENT OFFICIALS.—Section 104 of this Act [amending section 2516 of this title] shall take effect on the date of enactment of this Act [Oct. 21, 1986].’’ SHORT TITLE OF 1997 AMENDMENT Pub. L. 105–112, § 1, Nov. 21, 1997, 111 Stat. 2273, pro- vided that: ‘‘This Act [amending section 2512 of this title] may be cited as the ‘Law Enforcement Tech- nology Advertisement Clarification Act of 1997’.’’ SHORT TITLE OF 1986 AMENDMENT Pub. L. 99–508, § 1, Oct. 21, 1986, 100 Stat. 1848, provided that: ‘‘This Act [enacting sections 1367, 2521, 2701 to 2710, 3117, and 3121 to 3126 of this title, amending sec- tions 2232, 2511 to 2513, and 2516 to 2520 of this title, and enacting provisions set out as notes under this section and sections 2701 and 3121 of this title] may be cited as the ‘Electronic Communications Privacy Act of 1986’.’’ INTELLIGENCE ACTIVITIES Pub. L. 99–508, title I, § 107, Oct. 21, 1986, 100 Stat. 1858, provided that: ‘‘(a) IN GENERAL.—Nothing in this Act or the amend- ments made by this Act [see Short Title of 1986 Amend- ment note above] constitutes authority for the conduct of any intelligence activity. ‘‘(b) CERTAIN ACTIVITIES UNDER PROCEDURES AP- PROVED BY THE ATTORNEY GENERAL.—Nothing in chap- ter 119 or chapter 121 of title 18, United States Code, shall affect the conduct, by officers or employees of the United States Government in accordance with other applicable Federal law, under procedures approved by the Attorney General of activities intended to— ‘‘(1) intercept encrypted or other official commu- nications of United States executive branch entities or United States Government contractors for commu- nications security purposes; ‘‘(2) intercept radio communications transmitted between or among foreign powers or agents of a for- eign power as defined by the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1801 et seq.]; or ‘‘(3) access an electronic communication system used exclusively by a foreign power or agent of a for- eign power as defined by the Foreign Intelligence Surveillance Act of 1978.’’ CONGRESSIONAL FINDINGS Pub. L. 90–351, title III, § 801, June 19, 1968, 82 Stat. 211, provided that: ‘‘On the basis of its own investiga- tions and of published studies, the Congress makes the following findings: ‘‘(a) Wire communications are normally conducted through the use of facilities which form part of an interstate network. The same facilities are used for interstate and intrastate communications. There has been extensive wiretapping carried on without legal sanctions, and without the consent of any of the parties to the conversation. Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private, without the consent of any of the parties to such communications. The con- tents of these communications and evidence derived therefrom are being used by public and private parties as evidence in court and administrative proceedings, and by persons whose activities affect interstate com- merce. The possession, manufacture, distribution, ad- vertising, and use of these devices are facilitated by interstate commerce. ‘‘(b) In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the cir- cumstances and conditions under which the intercep- tion of wire and oral communications may be author- ized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings. ‘‘(c) Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evi- dence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice. Page 632 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2511 ‘‘(d) To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has con- sented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral com- munications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused.’’ NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE LAWS RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE Pub. L. 90–351, title III, § 804, June 19, 1968, 82 Stat. 223, as amended by Pub. L. 91–452, title XII, § 1212, Oct. 15, 1970, 84 Stat. 961; Pub. L. 91–644, title VI, § 20, Jan. 2, 1971, 84 Stat. 1892; Pub. L. 93–609, §§ 1–4, Jan. 2, 1975, 88 Stat. 1972, 1973; Pub. L. 94–176, Dec. 23, 1975, 89 Stat. 1031, established a National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, provided for its membership, Chairman, powers and functions, compensation and al- lowances, required the Commission to study and review the operation of the provisions of this chapter to deter- mine their effectiveness and to submit interim reports and a final report to the President and to the Congress of its findings and recommendations on or before Apr. 30, 1976, and also provided for its termination sixty days after submission of the final report. § 2511. Interception and disclosure of wire, oral, or electronic communications prohibited (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 de- vice 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 commu- nication; 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 com- merce; or (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the oper- ations of which affect interstate or foreign commerce; or (B) obtains or is for the pur- pose of obtaining information relating to the operations of any business or other commer- cial establishment the operations of which affect interstate or foreign commerce; or (v) such person acts in the District of Co- lumbia, 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 in- formation was obtained through the intercep- tion of a wire, oral, or electronic communica- tion 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 ob- tained through the interception of such a com- munication in connection with a criminal in- vestigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improp- erly 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 fa- cilities are used in the transmission of a wire or electronic communication, to intercept, dis- close, 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 commu- nication 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 as- sistance to persons authorized by law to inter- cept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveil- lance 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 or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 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 assist-