TITLE 18. CRIMES AND CRIMINAL PROCEDURE PART I. CRIMES CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS Review Court Orders which may amend this Rule. 18 USCS § 2701 (2003) Review expert commentary from The National Institute for Trial Advocacy preceding 18 USCS § 2701 § 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, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State--       (A) a fine under this title or imprisonment for not more than 5 years, 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 10 years, or both, for any subsequent offense under this subparagraph; and    (2) in any other case--       (A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and       (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section. (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. HISTORY:    (Added Oct. 21, 1986, P.L. 99-508, Title II, § 201(a), 100 Stat. 1860.)    (As amended Sept. 13, 1994, P.L. 103-322, Title XXXIII, § 330016(1)(K), (U), 108 Stat. 2147, 2148; Oct. 11, 1996, P.L. 104-294, Title VI, § 601(a)(3), 110 Stat. 3498; Nov. 25, 2002, P.L. 107-296, Title II, Subtitle C, § 225(j)(2), 116 Stat. 2158.) HISTORY; ANCILLARY LAWS AND DIRECTIVES Amendments:    1994. Act Sept. 13, 1994, in subsec. (b), in para. (1)(A), substituted "under this title" for "not more than $ 250,000" and, in para. (2), substituted "under this title" for "not more than $ 5,000".    1996. Act Oct. 11, 1996, in subsec. (b), in paras. (1)(A) and (2), substituted "fine under" for "fine of under".    2002. Act Nov. 5, 2002 (effective 60 days after enactment, as provided by § 4 of such Act, which appears as 6 USCS § 101 note), in subsec. (b), in para. (1), in the introductory matter, inserted ", or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State", in subpara. (A), substituted "5 years" for "one year", and, in subpara. (B), substituted "10 years" for "two years", and substituted para. (2) for one which read: "(2) a fine under this title or imprisonment for not more than six months, or both, in any other case.". Short titles:    Act Nov. 5, 1988, P.L. 100-618, § 1, 102 Stat. 3195, provides: "This Act may be cited as the 'Video Privacy Protection Act of 1988'.". For full classification of such Act, consult USCS Tables volumes. Other provisions:    Effective date and application of Act Oct. 21, 1986. Act Oct. 21, 1986, P.L. 99-508, Title II, § 202, 100 Stat. 1868, provides: "This title and the amendments made by this title [adding 18 USCS §§ 2701 et seq.] shall take effect ninety days after the date of the enactment of this Act and shall, in the case of conduct pursuant to a court order or extension, apply only with respect to court orders or extensions made after this title takes effect.". NOTES:                                   COMMENTARY    See commentary by the National Institute for Trial Advocacy preceding 18 USCS § 2701 (relating to computer records).                                 RESEARCH GUIDE Federal Procedure:    27 Moore's Federal Practice (Matthew Bender 3d ed.), Search and Seizure § 641.121.    5 Weinstein's Federal Evidence (Matthew Bender 2d ed.), Discovering and Admitting Computer-Based Evidence § 900.07. Am Jur Proof of Facts:    67 Am Jur Proof of Facts 3d, Proof of Liability for Violation of Privacy of Internet User, by Cookies or Other Means, p. 249. Forms:    10 Am Jur Legal Forms 2d (2001), Internet Transactions § 150B:47.    23B Am Jur Pl & Pr Forms (2002), Trademarks and Tradenames, § 123. Annotations:    Validity of Search or Seizure of Computer, Computer Disk, or Computer Peripheral Equipment. 84 ALR5th 1.    Expectation of Privacy in Internet Communications. 92 ALR5th 15. Law Review Articles:    Sidbury. You've got mail . . . and your boss knows it: rethinking the scope of the Electronic Communications Privacy Act. 5 J Internet L 16, July 2001.                         INTERPRETIVE NOTES AND DECISIONS    Banks cannot be held civilly liable under 18 USCS § 2707(a) for violation of 18 USCS § 2701 based on government's seizure of numerous electronic fund transfers alleged to involve drug proceeds because good faith reliance on court warrant or order is complete defense under § 2707(d)(1). Organizacion JD Ltda. v United States Dep't of Justice (1994, CA2 NY) 18 F3d 91, cert den (US) 129 L Ed 2d 813, 114 S Ct 2679.    There was no violation of 18 USCS § 2701 resulting from seizure of two computer bulletin boards and computer search because access is excused if it occurs pursuant to approved procedures, which include use of a warrant, as in this case. Guest v Leis (2001, CA6 Ohio) 255 F3d 325, 2001 FED App 206P.    Airline violated Stored Communications Act, 18 USCS § 2701(a)(1), when airline official gained access to pilot's secure website by using two other pilots' names to establish accounts and passwords, because two pilots were not "users" of website at time they authorized airline official to use their names. Konop v Hawaiian Airlines, Inc. (2002, CA9 Cal) 302 F3d 868, 2002 CDOS 7727, 2002 Daily Journal DAR 9709, 19 BNA IER Cas 166, 170 BNA LRRM 2906, 146 CCH LC P 10096.    Police officers, faced with internal affairs investigation based on contents of messages sent to one another via "Alphapage" system, unsuccessfully challenge storage and retrieval of those messages from police department's computer network, where city is "provider" of "electronic communications service" at issue here, because neither city nor its employees can be liable since 18 USCS § 2701(c)(1) allows service providers to do as they wish when it comes to accessing communications in electronic storage. Bohach v City of Reno (1996, DC Nev) 932 F Supp 1232, 11 BNA IER Cas 1707.    Video game manufacturer did not violate 18 USCS § 2701(a), even though manufacturer, suspecting copyright infringement, had its employee access electronic billboard run by defendant by use of pseudonym, because bulletin board is open to public and normally accessed by use of alias or pseudonym, and employee's access was directly or indirectly authorized by valid user of bulletin board who was informant. Sega Enters. v MAPHIA (1996, ND Cal) 948 F Supp 923, 41 USPQ2d 1705.    Multiplicitous count is dismissed from indictment charging defendant with listening to stored voice mail messages intended for third parties, where "listening" to stored messages is not "intercept" in violation of 18 USCS § 2511 but merely aspect of illegal accessing of stored messages in violation of § 2701, since only interception of voice mail while in transmission, like wiretap on telephone in use, can amount to violation of § 2511. United States v Moriarty (1997, DC Mass) 962 F Supp 217.    Federal wiretapping claim cannot be dismissed summarily from litigation arising from split between freight forwarder and its representative, where general disputes remain regarding what information, if any, was altered or deleted from forwarder's computer system, and what agreement had been reached between parties regarding use of computer system, because court cannot yet tell whether there has been violation of 18 USCS § 2701. Pilot Air Freight Corp. v Sandair, Inc. (2000, ED Pa) 118 F Supp 2d 557.    Class action against largest provider of Internet advertising products and services in world is dismissed, where Internet users challenge provider's storage of computer programs known as "cookies" on computer hard drives of users who access websites affiliated with provider, because pleadings and evidence fail to prove that provider's methods, while raising consumer privacy concerns, also violate Title II of Electronic Communications Privacy Act (18 USCS §§ 2701 et seq.), Federal Wiretap Act (18 USCS §§ 2510 et seq.), or Computer Fraud and Abuse Act (18 USCS §§ 1030 et seq.). In re Doubleclick Privacy Litig. (2001, SD NY) 154 F Supp 2d 497 (criticized in In re Am. Online, Inc. Version 5.0 Software Litig. (2001, SD Fla) 168 F Supp 2d 1359).    Pharmaceutical companies that operated websites and monitoring company hired to collect information from personal computers used to access websites could not be held liable for obtaining private information from users of personal computers under 18 USCS § 2701(a) because (1) personal computers were not facilities through which electronic communication service was provided for purposes of § 2701, and (2) even if computers did qualify as facilities, any access to stored communications, i.e., "cookies" sent by monitoring company, was not unauthorized. In re Pharmatrak, Inc. Privacy Litig. (2002, DC Mass) 220 F Supp 2d 4.    There can be no violation of 18 USCS § 2701 by person with authorized access to database, no matter how malicious or larcenous his intended use of that access. Sherman & Co. v Salton Maxim Housewares, Inc. (2000, ED Mich) 94 F Supp 2d 817.