18 U.S.C. § 2708 — Exclusivity of remedies

Page 665 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2708 under this section, the court may assess the costs of the action, together with reasonable at- torney fees determined by the court. (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 depart- ment or agency finds that the circumstances surrounding the violation raise serious ques- tions about whether or not an officer or em- ployee of the United States acted willfully or in- tentionally with respect to the violation, the de- partment 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 disciplinary action against the officer or employee is warranted. If the head of the de- partment or agency involved determines that disciplinary action is not warranted, 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. (e) DEFENSE.—A good faith reliance on— (1) a court warrant or order, a grand jury subpoena, a legislative 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 en- forcement officer under section 2518(7) of this title; or (3) a good faith determination that section 2511(3), section 2702(b)(9), or section 2702(c)(7) of this title permitted the conduct complained of; is a complete defense to any civil or criminal ac- tion brought under this chapter or any other law. (f) LIMITATION.—A civil action under this sec- tion may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation. (g) IMPROPER DISCLOSURE.—Any willful disclo- sure of a ‘‘record’’, as that term is defined in section 552a(a) of title 5, United States Code, ob- tained by an investigative or law enforcement officer, or a governmental entity, pursuant to section 2703 of this title, or from a device in- stalled 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 offi- cer or governmental entity making the disclo- sure, is a violation of this chapter. This provi- sion 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. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1866; amended Pub. L. 104–293, title VI, § 601(c), Oct. 11, 1996, 110 Stat. 3469; Pub. L. 107–56, title II, §§ 223(b), title VIII, § 815, Oct. 26, 2001, 115 Stat. 293, 384; Pub. L. 107–273, div. B, title IV, § 4005(f)(2), Nov. 2, 2002, 116 Stat. 1813; Pub. L. 115–141, div. V, § 104(2)(B), Mar. 23, 2018, 132 Stat. 1216.) Editorial Notes AMENDMENTS 2018—Subsec. (e)(3). Pub. L. 115–141 amended par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘a good faith determination that section 2511(3) of this title permitted the conduct complained of;’’. 2002—Subsec. (e)(1). Pub. L. 107–273 made technical correction to directory language of Pub. L. 107–56, § 815. See 2001 Amendment note below. 2001—Subsec. (a). Pub. L. 107–56, § 223(b)(1), inserted ‘‘, other than the United States,’’ after ‘‘person or enti- ty’’. Subsec. (d). Pub. L. 107–56, § 223(b)(2), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: ‘‘If a court determines that any agency or department of the United States has violated this chapter and the court finds that the circumstances surrounding the violation raise the question whether or not an officer or employee of the agency or department acted willfully or intentionally with respect to the vio- lation, the agency or department concerned shall promptly initiate a proceeding to determine whether or not disciplinary action is warranted against the officer or employee.’’ Subsec. (e)(1). Pub. L. 107–56, § 815, as amended by Pub. L. 107–273, inserted ‘‘(including a request of a gov- ernmental entity under section 2703(f) of this title)’’ after ‘‘or a statutory authorization’’. Subsec. (g). Pub. L. 107–56, § 223(b)(3), added subsec. (g). 1996—Subsec. (a). Pub. L. 104–293, § 601(c)(1), sub- stituted ‘‘other person’’ for ‘‘customer’’. Subsec. (c). Pub. L. 104–293, § 601(c)(2), inserted at end ‘‘If the violation is willful or intentional, the court may assess punitive damages. In the case of a success- ful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.’’ Subsecs. (d) to (f). Pub. L. 104–293, § 601(c)(3), (4), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–273, div. B, title IV, § 4005(f)(2), Nov. 2, 2002, 116 Stat. 1813, provided that the amendment made by section 4005(f)(2) is effective Oct. 26, 2001. 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. § 2708. Exclusivity of remedies The remedies and sanctions described in this chapter are the only judicial remedies and sanc- tions for nonconstitutional violations of this chapter. (Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1867.) 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. 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