§ 2709. Counterintelligence access to telephone toll and transactional records

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1986

   Electronic Communications Privacy Act of 1986

   Pub. L. 99–508 title II § 201 · 100 Stat. 1848

   Enacted · 18 U.S.C. § 2709

   Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1867

   Source evidence

   Code source credit
   Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1867

   Enacted provision · exact public law section
   SEC. 201. TITLE 18 AMENDMENT. Title 18, United States Code, is amended by inserting after chapter 119 the following: “CHAPTER 121— STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS “Sec. “2701. Unlawful access to stored communications. “2702. Disclosure of contents. “2703. Requirements for governmental access. “2704. Backup preservation. “2705. Delayed notice. “2706. Cost reimbursement. “2707. Civil action. “2708. Exclusivity of remedies. “2709. Counterintelligence access to telephone toll and transactional records. “2710. Definitions. “§ 2701. Unlawful access to stored communications “(a) Offense.— Except as provided in subsection (c) of this section whoever— “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. “(b) Punishment.— The punishment for an offense under subsection (a) of this section is— “(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain— “(A) a fine of not more than $250,000 or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and “(B) a fine under this title or imprisonment for not more than two years, or both, for any subsequent offense under this subparagraph; and “(2) a fine of not more than $5,000 or imprisonment for not more than six months, or both, in any other case. “(c) Exceptions.— Subsection (a) of this section does not apply with respect to conduct authorized— “(1) by the person or entity providing a wire or electronic communications service; “(2) by a user of that service with respect to a communication of or intended for that user; or “(3) in section 2703, 2704 or 2518 of this title. “§ 2702. Disclosure of contents “(a) Prohibitions.— Except as provided in subsection (b)— “(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage 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 transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; and “(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. “(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 2516, 2511(2)(a), or 2703 of this title; “(3) with the lawful consent of the originator or an addressee 18 USC 2516, 2511; infra. 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, if such contents— “(A) were inadvertently obtained by the service provider; and “(B) appear to pertain to the commission of a crime. “§ 2703. Requirements for governmental access “(a) Contents of Electronic Communications in Electronic Storage.— A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant. A governmental 18 USC app. entity may require the disclosure by a provider of electronic communications services of the contents of an electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. “(b) Contents of Electronic Communications in a Remote Computing Service.— (1) A governmental entity may require a provider of remote computing service to disclose the contents of any electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection— “(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued under the 18 USC app. Federal Rules of Criminal Procedure or equivalent State warrant; or “(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity— “(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena; or “(ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section Post, p. 1864. 2705 of this title. “(2) Paragraph (1) is applicable with respect to any electronic communication that is held or maintained on that service— “(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and “(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. “(c) Records Concerning Electronic Communication Service or Remote Computing Service.— (1) (A) Except as provided in subparagraph (B), a provider of electronic communication service or remote computing service may disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to any person other than a governmental entity. “(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity only when the governmental entity— “(i) uses an administrative subpoena authorized by a Federal or State statute, or a Federal or State grand jury subpoena; “(ii) obtains a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant; “(iii) obtains a court order for such disclosure under subsection (d) of this section; or “(iv) has the consent of the subscriber or customer to such disclosure. “(2) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. “(d) Requirements for Court Order.— A court order for disclosure under subsection (b) or (c) of this section shall issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry. In the case of a State governmental 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 service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. “(e) No Cause of Action Against a Provider Disclosing Information Under This Chapter.— No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or certification under this chapter. “§ 2704. Backup preservation “(a) Backup Preservation.— (1) A governmental entity acting under section 2703(b)(2) may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of such subpoena or court order, such service provider shall create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the governmental entity that such backup copy has been made. Such backup copy shall be created within two business days after receipt by the service provider of the subpoena or court order. “(2) Notice to the subscriber or customer shall be made by the governmental entity within three days after receipt of such confirmation, unless such notice is delayed pursuant to section 2705(a). “(3) The service provider shall not destroy such backup copy until the later of— “(A) the delivery of the information; or “(B) the resolution of any proceedings (including appeals of any proceeding) concerning the government’s subpoena or court order. “(4) The service provider shall release such backup copy to the requesting governmental entity no sooner than fourteen days after the governmental entity’s notice to the subscriber or customer if such service provider— “(A) has not received notice from the subscriber or customer that the subscriber or customer has challenged the governmental entity’s request; and “(B) has not initiated proceedings to challenge the request of the governmental entity. “(5) A governmental entity may seek to require the creation of a backup copy under subsection (a)(1) of this section if in its sole discretion such entity determines that there is reason to believe that notification under section 2703 of this title of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber or customer or service provider. “(b) Customer Challenges.— (1) Within fourteen days after notice by the governmental entity to the subscriber or customer under subsection (a)(2) of this section, such subscriber or customer may file a motion to quash such subpoena 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 maintained for him have been sought; and “(B) stating the applicant’s reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance 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 purposes of this section, the term ‘delivery’ has the meaning 28 USC app. 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 subsection, the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity includes in its response the reasons which make in camera review appropriate. If the court is unable 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 response. “(4) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order such process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this chapter, it shall order the process quashed. “(5) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer. “§ 2705. Delayed notice “(a) Delay of Notification.— (1) A governmental 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 notification 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 believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or “(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, 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 notification 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 paragraph (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 evidence; “(D) intimidation of potential witnesses; or “(E) otherwise seriously jeopardizing an investigation 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 provided 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 nature of the law enforcement inquiry; and “(B) informs such customer or subscriber— “(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental 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 pursuant to which that delay was made; and “(iv) which provision of this chapter allowed such delay. “(6) As used in this subsection, the term ‘supervisory 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 prosecuting attorney’s headquarters or regional office. “(b) Preclusion of Notice to Subject of Governmental Access.— A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 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 commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification 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 evidence; “(4) intimidation of potential witnesses; or “(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. “§ 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 entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information. Such reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service in which such information 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 entity 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 information would be brought, if no court order was issued for production of the information). “(c) 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 obtained under section 2703 of this title. The court may, however, order a payment as described in subsection (a) if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider. “§ 2707. Civil action “(a) Cause of Action.— Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or customer 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 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. “(d) Defense.— A good faith reliance on— “(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization; “(2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or “(3) a good faith determination that section 2511(3) of this title permitted the conduct complained of; is a complete defense to any civil or criminal action brought under this chapter or any other law. “(e) Limitation.— A civil action under this section 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. “§ 2708. Exclusivity of remedies “The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter. “§ 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 custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. “(b) Required Certification.— The Director of the Federal Bureau of Investigation (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director) may request any such information 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 authorized 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). “(c) Prohibition of Certain Disclosure.— No wire or electronic communication service provider, or officer, employee, 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. “(d) Dissemination by Bureau.— The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency. “(e) Requirement That Certain Congressional Bodies Be Informed.— On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made under subsection (b) of this section. “§ 2710. Definitions for chapter “As used in this chapter— “(1) the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that section; and “(2) the term ‘remote computing service’ means the provision to the public of computer storage or processing services by means of an electronic communications system.”. (b) Clerical Amendment.— The table of chapters at the beginning of part I of title 18, United States Code, is amended by adding at the end the following: “121. Stored Wire and Electronic Communications and Transactional Records Access

2. 1993

   Pub. L. 103–142 § 1 · 107 Stat. 1491

   Amended · 18 U.S.C. § 2709(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 within the Federal Bureau of Investigation designated for this purpose by the Director) may request any such information 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—

   Source evidence

   Code amendment note
   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 within the Federal Bureau of Investigation designated for this purpose by the Director) may request any such information 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 authorized 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).”

   Enacted provision · exact public law section
   SECTION 1. REQUIRED CERTIFICATION. Section 2709(b) of title 18, United States Code, is amended to read as follows: “(b) Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director, may— “(1) request the name, address, length of service, and toll billing records of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that— “(A) the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counter intelligence 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 “(2) request the name, address, and length of service of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that— “(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and “(B) there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication 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 intelligence activities that involve or may involve a violation of the criminal statutes of the United States.”.

3. 1993

   Pub. L. 103–142 § 2 · 107 Stat. 1491

   Inserted · 18 U.S.C. § 2709(e)

   Pub. L. 103–142, § 2, inserted “, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate,” after “Senate”

   Source evidence

   Code amendment note
   Subsec. (e). Pub. L. 103–142, § 2, inserted “, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate,” after “Senate”.

   Enacted provision · exact public law section
   SEC. 2. REPORT TO JUDICIARY COMMITTEES. Section 2709(e) of title 18, United States Code, is amended by adding after “Senate” the following: “, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate,”.

4. 1996

   Intelligence Authorization Act for Fiscal Year 1997

   Pub. L. 104–293 title VI § 601(a) · 110 Stat. 3461

   Inserted · 18 U.S.C. § 2709(b)(1)

   Pub. L. 104–293 inserted “local and long distance” before “toll billing records”

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 104–293 inserted “local and long distance” before “toll billing records”.

   Enacted provision · exact public law section
   (a) Access for Counterintelligence Purposes.— Section 2709(b)(1) of title 18, United States Code, is amended by inserting “local and long distance” before “toll billing records”.

5. 2001

   Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001

   Pub. L. 107–56 § 505(a)(1) · 115 Stat. 272

   Inserted · 18 U.S.C. § 2709(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 provisions

   Source evidence

   Code amendment note
   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 provisions.

   Enacted provision · exact public law section
   (1) in the matter preceding paragraph (1), by inserting “at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director” after “Assistant Director”;

6. 2001

   Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001

   Pub. L. 107–56 § 505(a)(2) · 115 Stat. 272

   1. Struck · 18 U.S.C. § 2709(b)(1)

      Pub. L. 107–56, § 505(a)(2), struck out “in a position not lower than Deputy Assistant Director” after “(or his designee”

   2. Substituted · 18 U.S.C. § 2709(b)(1)

      Pub. L. 107–56, § 505(a)(2), substituted “made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, 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” for “made that—

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 107–56, § 505(a)(2), struck out “in a position not lower than Deputy Assistant Director” after “(or his designee” and substituted “made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, 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” 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”.

   Enacted provision · exact public law section
   (2) in paragraph (1)— (A) by striking “in a position not lower than Deputy Assistant Director”; and (B) by striking “made that” and all that follows and inserting the following: “made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, 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”; and

7. 2001

   Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001

   Pub. L. 107–56 § 505(a)(3) · 115 Stat. 272

   1. Struck · 18 U.S.C. § 2709(b)(2)

      Pub. L. 107–56, § 505(a)(3), struck out “in a position not lower than Deputy Assistant Director” after “(or his designee”

   2. Substituted · 18 U.S.C. § 2709(b)(2)

      Pub. L. 107–56, § 505(a)(3), substituted “made that the information sought is relevant to an authorized investigation to protect against international terrorism 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.” for “made that—

   Source evidence

   Code amendment note
   Subsec. (b)(2). Pub. L. 107–56, § 505(a)(3), struck out “in a position not lower than Deputy Assistant Director” after “(or his designee” and substituted “made that the information sought is relevant to an authorized investigation to protect against international terrorism 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.” for “made that—

   “(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and “(B) there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication 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 intelligence activities that involve or may involve a violation of the criminal statutes of the United States.”

   Enacted provision · exact public law section
   (3) in paragraph (2)— (A) by striking “in a position not lower than Deputy Assistant Director”; and (B) by striking “made that” and all that follows and inserting the following: “made that the information sought is relevant to an authorized investigation to protect against international terrorism 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.”.

8. 2006

   USA PATRIOT Improvement and Reauthorization Act of 2005

   Pub. L. 109–177 title I § 116(a) · 120 Stat. 192

   Amended · 18 U.S.C. § 2709(c)

   Pub. L. 109–177 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “No wire or electronic communication service provider, or officer, employee, 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.”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 109–177 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “No wire or electronic communication service provider, or officer, employee, 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.”

   Enacted provision · exact public law section
   (a) Section 2709(c) of title 18, United States Code, is amended to read: “(c) Prohibition of Certain Disclosure.— “(1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section. “(2) Notification. The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). “(3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1). “(4) 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 designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.” .

9. 2006

   USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006

   Pub. L. 109–178 § 4(b) · 120 Stat. 278

   Amended · 18 U.S.C. § 2709(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 designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.”

   Source evidence

   Code amendment note
   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 designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, but in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.”

   Enacted provision · exact public law section
   (b) Title 18.— Paragraph (4) of section 2709(c) of title 18, United States Code, as amended by the applicable Act, is amended to read as follows: “(4) 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 designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a).” .

10. 2006

    USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006

    Pub. L. 109–178 § 5 · 120 Stat. 278

    Added · 18 U.S.C. § 2709(f)

    Pub. L. 109–178, § 5, added subsec. (f)

    Source evidence

    Code amendment note
    Subsec. (f). Pub. L. 109–178, § 5, added subsec. (f).

    Enacted provision · exact public law section
    SEC. 5. PRIVACY PROTECTIONS FOR LIBRARY PATRONS.   Section 2709 of title 18, United States Code, as amended by the applicable Act, is amended by adding at the end the following: “(f) Libraries.— A library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the services 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, examination, or circulation, is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) (‘electronic communication service’) of this title.” .   This Effective date. 12 USC 3414 note. Act shall become effective immediately upon enactment.

11. 2015

    Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015

    Pub. L. 114–23 § 501(a) · 129 Stat. 268

    Substituted · 18 U.S.C. § 2709(b)

    Pub. L. 114–23, § 501(a), substituted “may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request” for “may” in introductory provisions

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 114–23, § 501(a), substituted “may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request” for “may” in introductory provisions.

    Enacted provision · exact public law section
    (a) Counterintelligence Access to Telephone Toll and Transactional Records.— Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking “may” and inserting “may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request”.

12. 2015

    Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015

    Pub. L. 114–23 § 502(a) · 129 Stat. 268

    1. Added · 18 U.S.C. § 2709(c)

       Pub. L. 114–23, § 502(a), added subsec. (c)

    2. Struck · 18 U.S.C. § 2709(c)

       Pub. L. 114–23, § 502(a), struck out former subsec. (c) which related to prohibition of certain disclosure

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 114–23, § 502(a), added subsec. (c) and struck out former subsec. (c) which related to prohibition of certain disclosure.

    Enacted provision · exact public law section
    (a) Counterintelligence Access to Telephone Toll and Transactional Records.— Section 2709 of title 18, United States Code, is amended by striking subsection (c) and inserting the following new subsection: “(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 communication service provider that receives a request under subsection (b), or officer, employee, 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. “(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 relations; or “(iv) danger to the life or physical safety of any person. “(2) Exception.— “(A) In general.— A wire or electronic communication service provider that receives a request under subsection (b), or officer, employee, or agent thereof, may disclose information otherwise subject to any applicable nondisclosure requirement to— “(i) those persons to whom disclosure is necessary in order to comply with the request; “(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 Investigation or the designee of the Director. “(B) Application.— A person to whom disclosure 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 manner as the person to whom the request is issued. “(C) Notice.— Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement. “(D) Identification of disclosure recipients.— 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 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.” .

13. 2015

    Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015

    Pub. L. 114–23 § 503(a) · 129 Stat. 268

    1. Added · 18 U.S.C. § 2709(d)(g)

       Pub. L. 114–23, § 503(a), added subsec. (d)

    2. Redesignated · 18 U.S.C. § 2709(d)(g)

       Pub. L. 114–23, § 503(a), redesignated former subsecs. (d) to (f) as (e) to (g), respectively

    Source evidence

    Code amendment note
    Subsecs. (d) to (g). Pub. L. 114–23, § 503(a), added subsec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively.

    Enacted provision · exact public law section
    (a) Counterintelligence Access to Telephone Toll and Transactional Records.— Section 2709 of title 18, United States Code, is amended— (1) by redesignating subsections (d), (e), and (f) as subsections (e), (f), and (g), respectively; and (2) by inserting after subsection (c) the following new subsection: “(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 judicial review described in paragraph (1).” .

17 of 17 references resolved to an enrolled provision