18 U.S.C. § 2709 — Counterintelligence access to telephone

Page 666 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2709 § 2709. Counterintelligence access to telephone toll and transactional records (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 cus- tody or possession made by the Director of the Federal Bureau of Investigation under sub- section (b) of this section. (b) REQUIRED CERTIFICATION.—The Director of the Federal Bureau of Investigation, or his des- ignee in a position not lower than Deputy As- sistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may, using a term that specifically identifies a person, entity, tele- phone number, or account as the basis for a re- quest— (1) request the name, address, length of serv- ice, 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, ad- dress, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activi- ties, 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 informa- tion sought is relevant to an authorized inves- tigation to protect against international ter- rorism 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) PROHIBITION.— (A) IN GENERAL.—If a certification is issued under subparagraph (B) and notice of the right to judicial review under subsection (d) is provided, no wire or electronic commu- nication service provider that receives a re- quest under subsection (b), or officer, em- ployee, or agent thereof, shall disclose to any person that the Federal Bureau of Inves- tigation has sought or obtained access to in- formation or records under this section. (B) CERTIFICATION.—The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that the absence of a prohibition of disclosure under this subsection may result in— (i) a danger to the national security of the United States; (ii) interference with a criminal, counterterrorism, or counterintelligence investigation; (iii) interference with diplomatic rela- tions; or (iv) danger to the life or physical safety of any person. (2) EXCEPTION.— (A) IN GENERAL.—A wire or electronic com- munication service provider that receives a request under subsection (b), or officer, em- ployee, or agent thereof, may disclose infor- mation otherwise subject to any applicable nondisclosure requirement to— (i) those persons to whom disclosure is necessary in order to comply with the re- quest; (ii) an attorney in order to obtain legal advice or assistance regarding the request; or (iii) other persons as permitted by the Director of the Federal Bureau of Inves- tigation or the designee of the Director. (B) APPLICATION.—A person to whom dis- closure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (b) in the same man- ner as the person to whom the request is issued. (C) NOTICE.—Any recipient that discloses to a person described in subparagraph (A) in- formation otherwise subject to a nondisclo- sure requirement shall notify the person of the applicable nondisclosure requirement. (D) IDENTIFICATION OF DISCLOSURE RECIPI- ENTS.—At the request of the Director of the Federal Bureau of Investigation or the des- ignee of the Director, any person making or intending to make a disclosure under clause (i) or (iii) of subparagraph (A) 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. (d) JUDICIAL REVIEW.— (1) IN GENERAL.—A request under subsection (b) or a nondisclosure requirement imposed in connection with such request under subsection (c) shall be subject to judicial review under section 3511. (2) NOTICE.—A request under subsection (b) shall include notice of the availability of judi- cial review described in paragraph (1). (e) DISSEMINATION BY BUREAU.—The Federal Bureau of Investigation may disseminate infor- mation and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collec- tion and foreign counterintelligence investiga- tions conducted by the Federal Bureau of Inves- tigation, and, with respect to dissemination to an agency of the United States, only if such in- formation is clearly relevant to the authorized responsibilities of such agency. (f) REQUIREMENT THAT CERTAIN CONGRESSIONAL BODIES BE INFORMED.—On a semiannual basis the Director of the Federal Bureau of Investiga- tion shall fully inform the Permanent Select Page 667 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2709 Committee on Intelligence of the House of Rep- resentatives and the Select Committee on Intel- ligence 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. (g) LIBRARIES.—A library (as that term is de- fined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the serv- ices 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, exam- ination, or circulation, is not a wire or elec- tronic communication service provider for pur- poses of this section, unless the library is pro- viding the services defined in section 2510(15) (‘‘electronic communication service’’) of this title. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1867; amended Pub. L. 103–142, Nov. 17, 1993, 107 Stat. 1491; Pub. L. 104–293, title VI, § 601(a), Oct. 11, 1996, 110 Stat. 3469; Pub. L. 107–56, title V, § 505(a), Oct. 26, 2001, 115 Stat. 365; Pub. L. 109–177, title I, § 116(a), Mar. 9, 2006, 120 Stat. 213; Pub. L. 109–178, §§ 4(b), 5, Mar. 9, 2006, 120 Stat. 280, 281; Pub. L. 114–23, title V, §§ 501(a), 502(a), 503(a), June 2, 2015, 129 Stat. 282, 283, 289.) Editorial Notes AMENDMENTS 2015—Subsec. (b). Pub. L. 114–23, § 501(a), substituted ‘‘may, using a term that specifically identifies a per- son, entity, telephone number, or account as the basis for a request’’ for ‘‘may’’ in introductory provisions. Subsec. (c). Pub. L. 114–23, § 502(a), added subsec. (c) and struck out former subsec. (c) which related to pro- hibition of certain disclosure. Subsecs. (d) to (g). Pub. L. 114–23, § 503(a), added sub- sec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively. 2006—Subsec. (c). Pub. L. 109–177 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘No wire or elec- tronic communication service provider, or officer, em- ployee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.’’ Subsec. (c)(4). Pub. L. 109–178, § 4(b), amended par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘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 des- ignee the person to whom such disclosure will be made or to whom such disclosure was made prior to the re- quest, but in no circumstance shall a person be re- quired to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.’’ Subsec. (f). Pub. L. 109–178, § 5, added subsec. (f). 2001—Subsec. (b). Pub. L. 107–56, § 505(a)(1), inserted ‘‘at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director’’ after ‘‘Deputy Assistant Director’’ in introductory pro- visions. Subsec. (b)(1). Pub. L. 107–56, § 505(a)(2), struck out ‘‘in a position not lower than Deputy Assistant Direc- tor’’ after ‘‘(or his designee’’ and substituted ‘‘made that the name, address, length of service, and toll bill- ing records sought are relevant to an authorized inves- tigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not con- ducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and’’ for ‘‘made that— ‘‘(A) the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counterintelligence investigation; and ‘‘(B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and’’. Subsec. (b)(2). Pub. L. 107–56, § 505(a)(3), struck out ‘‘in a position not lower than Deputy Assistant Direc- tor’’ after ‘‘(or his designee’’ and substituted ‘‘made that the information sought is relevant to an author- ized investigation to protect against international ter- rorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities pro- tected by the first amendment to the Constitution of the United States.’’ for ‘‘made that— ‘‘(A) the information sought is relevant to an au- thorized foreign counterintelligence investigation; and ‘‘(B) there are specific and articulable facts giving reason to believe that communication facilities reg- istered in the name of the person or entity have been used, through the services of such provider, in com- munication with— ‘‘(i) an individual who is engaging or has engaged in international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States; or ‘‘(ii) a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intel- ligence activities that involve or may involve a vio- lation of the criminal statutes of the United States.’’ 1996—Subsec. (b)(1). Pub. L. 104–293 inserted ‘‘local and long distance’’ before ‘‘toll billing records’’. 1993—Subsec. (b). Pub. L. 103–142, § 1, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘REQUIRED CERTIFICATION.—The Director of the Federal Bureau of Investigation (or an individual with- in the Federal Bureau of Investigation designated for this purpose by the Director) may request any such in- formation and records if the Director (or the Director’s designee) certifies in writing to the wire or electronic communication service provider to which the request is made that— ‘‘(1) the information sought is relevant to an au- thorized foreign counterintelligence investigation; and ‘‘(2) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).’’ Subsec. (e). Pub. L. 103–142, § 2, inserted ‘‘, and the Committee on the Judiciary of the House of Represent- atives and the Committee on the Judiciary of the Sen- ate,’’ after ‘‘Senate’’. 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 Page 668 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2710 of Pub. L. 99–508, set out as a note under section 2701 of this title. § 2710. Wrongful disclosure of video tape rental or sale records (a) DEFINITIONS.—For purposes of this sec- tion— (1) the term ‘‘consumer’’ means any renter, purchaser, or subscriber of goods or services from a video tape service provider; (2) the term ‘‘ordinary course of business’’ means only debt collection activities, order fulfillment, request processing, and the trans- fer of ownership; (3) the term ‘‘personally identifiable infor- mation’’ includes information which identifies a person as having requested or obtained spe- cific video materials or services from a video tape service provider; and (4) the term ‘‘video tape service provider’’ means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual mate- rials, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure. (b) VIDEO TAPE RENTAL AND SALE RECORDS.— (1) A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d). (2) A video tape service provider may disclose personally identifiable information concerning any consumer— (A) to the consumer; (B) to any person with the informed, written consent (including through an electronic means using the Internet) of the consumer that— (i) is in a form distinct and separate from any form setting forth other legal or finan- cial obligations of the consumer; (ii) at the election of the consumer— (I) is given at the time the disclosure is sought; or (II) is given in advance for a set period of time, not to exceed 2 years or until con- sent is withdrawn by the consumer, which- ever is sooner; and (iii) the video tape service provider has provided an opportunity, in a clear and con- spicuous manner, for the consumer to with- draw on a case-by-case basis or to withdraw from ongoing disclosures, at the consumer’s election; (C) to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State war- rant, a grand jury subpoena, or a court order; (D) to any person if the disclosure is solely of the names and addresses of consumers and if— (i) the video tape service provider has pro- vided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and (ii) the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such mate- rials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer; (E) to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or (F) pursuant to a court order, in a civil pro- ceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, if— (i) the consumer is given reasonable no- tice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and (ii) the consumer is afforded the oppor- tunity to appear and contest the claim of the person seeking the disclosure. If an order is granted pursuant to subparagraph (C) or (F), the court shall impose appropriate safeguards against unauthorized disclosure. (3) Court orders authorizing disclosure under subparagraph (C) shall issue only with prior no- tice to the consumer and only if the law enforce- ment agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforce- ment inquiry. In the case of a State government 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 video tape service provider, may quash or modify such order if the information or records requested are unreason- ably voluminous in nature or if compliance with such order otherwise would cause an unreason- able burden on such provider. (c) CIVIL ACTION.—(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States dis- trict court. (2) The court may award— (A) actual damages but not less than liq- uidated damages in an amount of $2,500; (B) punitive damages; (C) reasonable attorneys’ fees and other liti- gation costs reasonably incurred; and (D) such other preliminary and equitable re- lief as the court determines to be appropriate. (3) No action may be brought under this sub- section unless such action is begun within 2 years from the date of the act complained of or the date of discovery. (4) No liability shall result from lawful disclo- sure permitted by this section. (d) PERSONALLY IDENTIFIABLE INFORMATION.— Personally identifiable information obtained in any manner other than as provided in this sec- tion shall not be received in evidence in any trial, hearing, arbitration, 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 of a State. (e) DESTRUCTION OF OLD RECORDS.—A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one year from the date the in-