18 U.S.C. § 2703

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 2703 - Required disclosure of customer communications or records

(a) CONTENTS OF WIRE OR ELECTRONIC COMMUNICATIONS IN ELECTRONIC STORAGE.-A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or 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 using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or 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 WIRE OR 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 wire or 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 using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction; 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 or trial 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 2705 of this title.

(2) Paragraph (1) is applicable with respect to any wire or 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 governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction;

(B) obtains a court order for such disclosure under subsection (d) of this section;

(C) has the consent of the subscriber or customer to such disclosure;

(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or

(E) seeks information under paragraph (2).

(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-

(A) name;

(B) address;

(C) local and long distance telephone connection records, or records of session times and durations;

(D) length of service (including start date) and types of service utilized;

(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

(F) means and source of payment for such service (including any credit card or bank account number),

of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

(3) 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) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. 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, statutory authorization, or certification under this chapter.

(f) REQUIREMENT TO PRESERVE EVIDENCE.-

(1) IN GENERAL.-A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) PERIOD OF RETENTION.-Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

(g) PRESENCE OF OFFICER NOT REQUIRED.-Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service.

(h) COMITY ANALYSIS AND DISCLOSURE OF INFORMATION REGARDING LEGAL PROCESS SEEKING CONTENTS OF WIRE OR ELECTRONIC COMMUNICATION.-

(1) DEFINITIONS.-In this subsection-

(A) the term "qualifying foreign government" means a foreign government-

(i) with which the United States has an executive agreement that has entered into force under section 2523; and

(ii) the laws of which provide to electronic communication service providers and remote computing service providers substantive and procedural opportunities similar to those provided under paragraphs (2) and (5); and

(B) the term "United States person" has the meaning given the term in section 2523.

(2) MOTIONS TO QUASH OR MODIFY.-

(A) A provider of electronic communication service to the public or remote computing service, including a foreign electronic communication service or remote computing service, that is being required to disclose pursuant to legal process issued under this section the contents of a wire or electronic communication of a subscriber or customer, may file a motion to modify or quash the legal process where the provider reasonably believes-

(i) that the customer or subscriber is not a United States person and does not reside in the United States; and

(ii) that the required disclosure would create a material risk that the provider would violate the laws of a qualifying foreign government.

Such a motion shall be filed not later than 14 days after the date on which the provider was served with the legal process, absent agreement with the government or permission from the court to extend the deadline based on an application made within the 14 days. The right to move to quash is without prejudice to any other grounds to move to quash or defenses thereto, but it shall be the sole basis for moving to quash on the grounds of a conflict of law related to a qualifying foreign government.

(B) Upon receipt of a motion filed pursuant to subparagraph (A), the court shall afford the governmental entity that applied for or issued the legal process under this section the opportunity to respond. The court may modify or quash the legal process, as appropriate, only if the court finds that-

(i) the required disclosure would cause the provider to violate the laws of a qualifying foreign government;

(ii) based on the totality of the circumstances, the interests of justice dictate that the legal process should be modified or quashed; and

(iii) the customer or subscriber is not a United States person and does not reside in the United States.

(3) COMITY ANALYSIS.-For purposes of making a determination under paragraph (2)(B)(ii), the court shall take into account, as appropriate-

(A) the interests of the United States, including the investigative interests of the governmental entity seeking to require the disclosure;

(B) the interests of the qualifying foreign government in preventing any prohibited disclosure;

(C) the likelihood, extent, and nature of penalties to the provider or any employees of the provider as a result of inconsistent legal requirements imposed on the provider;

(D) the location and nationality of the subscriber or customer whose communications are being sought, if known, and the nature and extent of the subscriber or customer's connection to the United States, or if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the nature and extent of the subscriber or customer's connection to the foreign authority's country;

(E) the nature and extent of the provider's ties to and presence in the United States;

(F) the importance to the investigation of the information required to be disclosed;

(G) the likelihood of timely and effective access to the information required to be disclosed through means that would cause less serious negative consequences; and

(H) if the legal process has been sought on behalf of a foreign authority pursuant to section 3512, the investigative interests of the foreign authority making the request for assistance.

(4) DISCLOSURE OBLIGATIONS DURING PENDENCY OF CHALLENGE.-A service provider shall preserve, but not be obligated to produce, information sought during the pendency of a motion brought under this subsection, unless the court finds that immediate production is necessary to prevent an adverse result identified in section 2705(a)(2).

(5) DISCLOSURE TO QUALIFYING FOREIGN GOVERNMENT.-

(A) It shall not constitute a violation of a protective order issued under section 2705 for a provider of electronic communication service to the public or remote computing service to disclose to the entity within a qualifying foreign government, designated in an executive agreement under section 2523, the fact of the existence of legal process issued under this section seeking the contents of a wire or electronic communication of a customer or subscriber who is a national or resident of the qualifying foreign government.

(B) Nothing in this paragraph shall be construed to modify or otherwise affect any other authority to make a motion to modify or quash a protective order issued under section 2705.

18 U.S.C. § 2703

Added Pub. L. 99-508, title II, §201 [(a)], Oct. 21, 1986, 100 Stat. 1861; amended Pub. L. 100-690, title VII, §§7038, title VII, 7039, Nov. 18, 1988, 102 Stat. 4399; Pub. L. 103-322, title XXXIII, §330003(b), Sept. 13, 1994, 108 Stat. 2140; Pub. L. 103-414, title II, §207(a), Oct. 25, 1994, 108 Stat. 4292; Pub. L. 104-132, title VIII, §804, Apr. 24, 1996, 110 Stat. 1305; Pub. L. 104-293, title VI, §601(b), Oct. 11, 1996, 110 Stat. 3469; Pub. L. 104-294, title VI, §605(f), Oct. 11, 1996, 110 Stat. 3510; Pub. L. 105-184, §8, June 23, 1998, 112 Stat. 522; Pub. L. 107-56, title II, §§209(2), Oct. 26, 2001, 210, Oct. 26, 2001, 212, Oct. 26, 2001, 115 Stat. 283, 285, 291, 292; Pub. L. 107-273, div. B, title IV, §4005(a)(2), div. C, title I, §11010, Nov. 2, 2002, 116 Stat. 1812, 1822; Pub. L. 107-296, title XXII, §2207(h)(1), formerly title II, §225(h)(1), Nov. 25, 2002, 116 Stat. 2158, renumbered §2207(h)(1), Pub. L. 115-278, §2(g)(2)(I), Nov. 16, 2018, 132 Stat. 4178; Pub. L. 109-162, title XI, §1171(a)(1), Jan. 5, 2006, 119 Stat. 3123; Pub. L. 111-79, §2(1), Oct. 19, 2009, 123 Stat. 2086; Pub. L. 114-328, div. E, title LVII, §5228(b)(1), Dec. 23, 2016, 130 Stat. 2912; Pub. L. 115-141, div. V, §103(b), Mar. 23, 2018, 132 Stat. 1214.

EDITORIAL NOTES

REFERENCES IN TEXTThe Federal Rules of Criminal Procedure, referred to in subsecs. (a), (b)(1)(A), and (c)(1)(B)(i), are set out in the Appendix to this title.

AMENDMENTS2018-Subsec. (h). Pub. L. 115-141 added subsec. (h). 2016-Subsecs. (a), (b)(1)(A), (c)(1)(A). Pub. L. 114-328 inserted "and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President" after "warrant procedures".2009-Subsecs. (a), (b)(1)(A), (c)(1)(A). Pub. L. 111-79 which directed substitution of "(or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction" for "by a court with jurisdiction over the offense under investigation or an equivalent State warrant", was executed by making the substitution for "by a court with jurisdiction over the offense under investigation or equivalent State warrant" to reflect the probable intent of Congress.2006-Subsec. (c)(1)(C). Pub. L. 109-162 struck out "or" at end.2002-Subsec. (c)(1)(E). Pub. L. 107-273, §4005(a)(2), realigned margins. Subsec. (e). Pub. L. 107-296 inserted ", statutory authorization" after "subpoena".Subsec. (g). Pub. L. 107-273, §11010, added subsec. (g).2001- Pub. L. 107-56, §212(b)(1)(A), substituted "Required disclosure of customer communications or records" for "Requirements for governmental access" in section catchline. Subsec. (a). Pub. L. 107-56, §§209(2)(A), (B), 220, substituted "Contents of Wire or Electronic" for "Contents of Electronic" in heading and "contents of a wire or electronic" for "contents of an electronic" in two places and "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in text. Subsec. (b). Pub. L. 107-56, §209(2)(A), substituted "Contents of Wire or Electronic" for "Contents of Electronic" in heading. Subsec. (b)(1). Pub. L. 107-56, §§209(2)(C), 220, substituted "any wire or electronic communication" for "any electronic communication" in introductory provisions and "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in subpar. (A).Subsec. (b)(2). Pub. L. 107-56, §209(2)(C), substituted "any wire or electronic communication" for "any electronic communication" in introductory provisions.Subsec. (c)(1). Pub. L. 107-56, §§212(b)(1)(C), 220, designated subpar. (A) and introductory provisions of subpar. (B) as par. (1), substituted "A governmental entity may require a provider of electronic communication service or remote computing service to" for "(A) Except as provided in subparagraph (B), a provider of electronic communication service or remote computing service may" and a closing parenthesis for provisions which began with "covered by subsection (a) or (b) of this section) to any person other than a governmental entity." in former subpar. (A) and ended with "(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", redesignated clauses (i) to (iv) of former subpar. (B) as subpars. (A) to (D), respectively, substituted "using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation" for "under the Federal Rules of Criminal Procedure" in subpar. (A) and "; or" for period at end of subpar. (D), added subpar. (E), and redesignated former subpar. (C) as par. (2).Subsec. (c)(2). Pub. L. 107-56, §210, amended par. (2), as redesignated by section 212 of Pub. L. 107-56 by substituting "entity the-" for "entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber" in introductory provisions, inserting subpars. (A) to (F), striking out "and the types of services the subscriber or customer utilized," before "when the governmental entity uses an administrative subpoena", inserting "of a subscriber" at beginning of concluding provisions and designating "to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1)." as remainder of concluding provisions. Pub. L. 107-56, §212(b)(1)(C)(iii), (D), redesignated subpar. (C) of par. (1) as par. (2) and temporarily substituted "paragraph (1)" for "subparagraph (B)". Pub. L. 107-56, §212(b)(1)(B), redesignated par. (2) as (3).Subsec. (c)(3). Pub. L. 107-56, §212(b)(1)(B), redesignated par. (2) as (3).Subsec. (d). Pub. L. 107-56, §220(b), struck out "described in section 3127(2)(A)" after "court of competent jurisdiction".1998-Subsec. (c)(1)(B)(iv). Pub. L. 105-184 added cl. (iv).1996-Subsec. (c)(1)(C). Pub. L. 104-293 inserted "local and long distance" after "address,".Subsec. (d). Pub. L. 104-294 substituted "in section 3127(2)(A)" for "in section 3126(2)(A)".Subsec. (f). Pub. L. 104-132 added subsec. (f).1994-Subsec. (c)(1)(B). Pub. L. 103-414, §207(a)(1)(A), redesignated cls. (ii) to (iv) as (i) to (iii), respectively, and struck out former cl. (i) which read as follows: "uses an administrative subpoena authorized by a Federal or State statute, or a Federal or State grand jury or trial subpoena;". Subsec. (c)(1)(C). Pub. L. 103-414, §207(a)(1)(B), added subpar. (C).Subsec. (d). Pub. L. 103-414, §207(a)(2), amended first sentence generally. Prior to amendment, first sentence read as follows: "A court order for disclosure under subsection (b) or (c) of this section may be issued by any court that is a court of competent jurisdiction set forth in section 3127(2)(A) of this title and 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." Pub. L. 103-322 substituted "section 3127(2)(A)" for "section 3126(2)(A)". 1988-Subsecs. (b)(1)(B)(i), (c)(1)(B)(i). Pub. L. 100-690, §7038, inserted "or trial" after "grand jury". Subsec. (d). Pub. L. 100-690, §7039, inserted "may be issued by any court that is a court of competent jurisdiction set forth in section 3126(2)(A) of this title and" before "shall issue".

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114-328 effective on the date designated by the President [Jan. 1, 2019, with certain conditions and exceptions, see Ex. Ord. No. 13825, set out as a note under section 801 of Title 10, Armed Forces], not later than the first day of the first calendar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the President not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various situations, see section 5542 of Pub. L. 114-328 set out as a note under section 801 of Title 10, Armed Forces.

EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107-296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107-296 set out as an Effective Date note under section 101 of Title 6, Domestic Security.

EFFECTIVE DATESection effective 90 days after Oct. 21, 1986, and, in the case of conduct pursuant to a court order or extension, applicable only with respect to court orders or extensions made after such effective date, see section 202 of Pub. L. 99-508 set out as a note under section 2701 of this title.

RULE OF CONSTRUCTION Pub. L. 115-141, div. V, §103(c), Mar. 23, 2018, 132 Stat. 1216, provided that: "Nothing in this section [enacting section 2713 of this title and amending this section], or an amendment made by this section, shall be construed to modify or otherwise affect the common law standards governing the availability or application of comity analysis to other types of compulsory process or to instances of compulsory process issued under section 2703 of title 18, United States Code, as amended by this section, and not covered under subsection (h)(2) of such section 2703."

court of competent jurisdiction

the term "court of competent jurisdiction" includes-(A) any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that-(i) has jurisdiction over the offense being investigated;(ii) is in or for a district in which the provider of a wire or electronic communication service is located or in which the wire or electronic communications, records, or other information are stored; or(iii) is acting on a request for foreign assistance pursuant to section 3512 of this title;(B) a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants; or(C) a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice) to which a military judge has been detailed; and

governmental entity

the term "governmental entity" means a department or agency of the United States or any State or political subdivision thereof.

remote computing service

the term "remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system;