CHAPTER 232

FORMERLY

SENATE BILL NO. 208

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO WIRETAPPING, ELECTRONIC SURVEILLANCE, AND INTERCEPTION OF COMMUNICATIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Title 11 of the Delaware Code striking Section 1336 in its entirety and substituting in lieu thereof a new chapter in Title 11 of the Delaware Code designated as “Chapter 24" to read as follows:

“ CHAPTER 24 – WIRETAPPING, ELECTRONIC SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS.

Section 2402. Wiretapping, Electronic Surveillance and Interception of Communications; definitions.

When used in this chapter:

(1) ‘Aural transfer’ means a transfer containing the human voice at any point between and including the point of origin and the point of reception.

(2) ‘Aggrieved person’ means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.

(3) ‘Communication common carrier’ means any person engaged as a common carrier for hire in the transmission of wire or electronic communications.

(4) ‘Contents’, when used with respect to any wire, oral, or electronic communication, includes any information concerning the identity of the parties to the communication or the existence or substance of that communication.

(5)‘Electronic communication’ means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any electromagnetic, photoelectronic, or photooptical system. However, ‘electronic communication’ does not include: (a) any wire or oral communication, (b) any communication made through a tone-only paging device; or, (c) any communication from a tracking device.

(6) ‘Electronic communication service” means any service that provides to users of the service the ability to send or receive wire, oral or electronic communications.

(7) ‘Electronic communications system’ means any wire, oral, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of wire, oral or electronic communications, and any computer facilities or related electronic equipment for the wire, oral or electronic storage of electronic communications.

(8) ‘Electronic, mechanical, or other device’ means any device or electronic communication instrument other than:

(a) Any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof, which is furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and is being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business or which is being used by a communications common carrier in the ordinary course of its business or which is being used by an investigative or law enforcement officer in the ordinary course of that officer’s duties; or,

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(9) ‘Electronic storage’ means any temporary, intermediate storage of a wire, oral or electronic communication incidental to the electronic transmission of the communication. ‘Electronic storage’ includes any storage of a wire, oral or electronic communication by an electronic communication service for purposes of backup protection of the communication.

(10) ‘Intercept’ means the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical, or other device.

(11) ‘Investigative or law enforcement officer’ means any officer of this State or a political subdivision of this State, who is empowered by law to conduct investigations or to make arrests for offenses enumerated in this title, any sworn law enforcement officer of the federal government or of any other state or a political subdivision of another state, working with and under the direction of an investigative or law enforcement officer of this State or a political subdivision of this State, or, any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

(12) ‘Judge’, when referring to a judge authorized to receive applications for and to enter orders authorizing interception of wire, oral or electronic communications, means 1 or more of the several Judges of the Superior Court to be designated from time to time by the President Judge of the Superior Court to receive applications for and to enter orders authorizing interception of wire, oral or electronic communications pursuant to this chapter.

(13) ‘Oral communication’ means any oral communication uttered by a person made while exhibiting an expectation that such communication is not subject to interception and under circumstances justifying such expectation, but such term does not include any electronic communication.

(14) ‘Pen register’ means a device that records and decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. ‘Pen register’ does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.

(15) ‘Person’ means any employee or agent of this State or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.

(16) ‘Readily accessible to the general public’ means, with respect to a radio communication, that the communication is not:

(a) Scrambled or encrypted;

(b) Transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of the communication; or

(c) Except for tone-only paging device communications, transmitted over frequencies reserved for private use and licensed for private use under federal or State law.

(17) ‘Remote computing service’ means the provision to the public of computer storage

or processing services by means of an electronic communications system.

(18) ‘Trap and trace device’ means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

(19) ‘User’ means any person or entity that uses an electronic communication service and is duly authorized by the provider of the service to engage in that use.

(20) ‘Wire communication’ means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.

Section 2403. Same -- Interception of communications generally; divulging contents of communications, violations of chapter.

(a) Prohibited acts. Except as specifically provided in this chapter or elsewhere in this Code no person shall:

(1) Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Intentionally disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this chapter; or

(3) Intentionally use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this chapter.

(b) Penalties for violation of subsection (a). Any person who violates subsection (a) of this section shall be guilty of a Class E felony and be fined not more than $10,000.

(c) Lawful acts. It is lawful:

(1) For an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of wire or electronic communication to intercept, disclose, or use such communication in the normal course of employment while engaged in any activity which is necessarily incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.

(2) For a provider of wire or electronic communication service, its officers,

employees, and agents, landlords, custodians or other persons to provide information, facilities, or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees, or agents, landlord, custodian, or other specified person has been provided with a court order signed by an authorizing judge directing the provision of information, facilities, or technical assistance.

a. An order as prescribed by this paragraph shall set forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specify the information, facilities, or technical assistance required. A provider of wire or electronic communication service, its officers, employees, or agents, or landlord, custodian, or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this paragraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the Attorney General of this State or the Attorney General’s designee. Any unauthorized disclosure, shall render the person liable for compensatory damages. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, or landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this chapter.

(3) For an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer in such investigation, pursuant to a court order issued by the Superior Court pursuant to §2408 of this title, to intercept a wire, oral, or electronic communication in order to provide evidence of the commission of the offenses including racketeering, murder, kidnaping, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking, any felony involving risk of physical injury to a victim or any conspiracy or solicitation to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.

(4) For a person to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitutions or laws of the United States, this State, or any other state or any political subdivision of the United States or this or any other state.

(5) For a law enforcement officer in the course of the officer’s regular duty to intercept an oral communication, if:

a. The law enforcement officer initially detained one of the parties and overhears a conversation;

b. The law enforcement officer is a party to the oral communication;

c. Both parties to the oral communication are present in a law enforcement facility where there is notice to occupants that such communications are monitored;

d. The law enforcement officer has been identified as a law enforcement officer to the other party to the oral communication prior to any interception; or

e. .The oral interception is being made as part of a video tape recording.

(6) For an officer, employee, or agent of a government emergency communications center to intercept a wire, oral, or electronic communication where the officer, agent or employee is a party to a conversation concerning an emergency.

(7) For law enforcement personnel or those acting under their direction to utilize body wires to intercept oral communications in the course of a criminal investigation when the law enforcement personnel or a person acting under their direction is a party to the communication. Communications intercepted by such means may be recorded and may be used against the defendant in a criminal proceeding.

(8) For a person:

a. To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;

b. To intercept any radio communication that is transmitted:

1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

2. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

4. By any marine or aeronautical communications system;

c. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference; or,

d. For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.

(9) To use a pen register or trap and trace device.

(10) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful, or abusive use of the service.

(11) For a person acting under color of law, and employed for such purpose by the Department of Correction, to intercept an electronic or oral communication of any individual confined to a State Correctional facility. At the direction of the Commissioner of Correction or his designee, a person performing an official investigation into suspected criminal activity may monitor and intercept the incoming and outgoing electronic communication of any individual incarcerated in a State Correctional facility. The Department may also employ devices to monitor all incarcerated individual’s incoming and outgoing electronic communication for words or phrases which would justify further investigation. The Department shall not monitor or intercept any communication between an individual confined in a State Correctional facility and his/her attorney.

(d) Divulging contents of communications. Except as provided in this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(1) A person or entity providing electronic communication service to the public may divulge the contents of a communication:

a. As otherwise authorized by federal or State law;

b. To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

c. That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law enforcement agency.

(2) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct which would otherwise be an offense under this subsection is not an offense, if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:

a. To a broadcasting station for purposes of retransmission to the general public; or

b. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.

(e) Penalties for divulging contents of communications. Whoever violates subsection (d) of this section shall:

(1) Except as otherwise provided in this subsection, be guilty of a Class F felony and fined not more than $10,000.

(2) For any offense which is a first offense:

a. which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and,

b. which involved a wire or electronic communication which was a radio communication that was not scrambled or encrypted; and,

c. which involved a communication which was not the radio portion of a cellular telephone communication, a pubic land mobile radio service communication, or a paging service communication;

be guilty of a Class A misdemeanor.

(3) For any offense which is a first offense:

a. which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and,

b. which involved a wire or electronic communication which was a radio communication that was not scrambled or encrypted; and,

c. which involved a communication which was the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication; be guilty of an unclassified misdemeanor.

(f) Civil Liability for Violations of §§2403 or 2404. A person who engages in conduct in violation of §§2403 or 2404 of this title is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:

(1) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of §§2403 or 2404 of this title is the private viewing of that communication, and is not for a tortious or illegal purpose, or for purposes of direct or indirect commercial advantage, or private commercial gain; or,

(2) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of §§2403 or 2404 of this title is not for a tortious or illegal purpose or for purpose of direct or indirect commercial advantage or private commercial gain.

(g) Injunctive Relief - Civil Penalties. The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person’s first offense under subsection (e) (1) of this section and the person has not been found liable in a prior civil action under §2410 of this title. However, in any action under this subsection, if the violation is a second or subsequent offense under subsection (e) (1) of this section or if the person has been found liable in a prior civil action under §2410 of this title, the person is subject to a mandatory civil fine of not less than $400. The Court may use any means within its authority to enforce an injunction issued under this subsection, and shall impose a civil fine of not less that $500 for each violation of an injunction issued under this subsection.

Section 2404. Same -- Manufacture, possession, or sale of intercepting device.

(a) Prohibited acts. Except as otherwise specifically provided by this chapter, any person who manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications, shall be guilty of a Class F felony and be fined of not more than $10,000.

(b) Lawful acts. It is lawful under this section for:

A provider of wire or electronic communication service or an officer, agent, or employee of, or person under contract with, a service provider, in the normal course of the business of providing that wire or electronic communication service to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications.

(2) A person under contract with the United States, a state, a political subdivision of a state, or the District of Columbia, in the normal course of the duties of the United States, a state, a political subdivision thereof, or the District of Columbia, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications.

(3) An officer, agent, or employee of the United States in the normal course of his lawful duties to manufacture, assemble, possess or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.

(4) An officer, agent, or employee of a law enforcement agency of this State or a political subdivision of this State in the normal course of his lawful duties to manufacture, assemble, possess or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications, provided, however, that the particular officer, agent, or employee is specifically authorized by the chief administrator of such law enforcement agency to manufacture, assemble or possess the device for a particular law enforcement purpose. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.

Section 2405. Same -- Admissibility of evidence.

Whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

Section 2406. Same -- Authorities permitted to apply for order authorizing interception.

The Attorney General, Chief Deputy Attorney General, State Prosecutor or Chief Prosecutor of any county may apply to a judge authorized to receive intercept applications and the judge, in accordance with the provisions of §2408 of this title, may grant an order authorizing the interception by investigative or law enforcement officers of wire, oral, or electronic communications when the interception may provide evidence:

(a) of the commission of the offense of racketeering, murder, kidnaping, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, dealing in controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking;

(b) of the commission of any felony creating a risk of physical injury to a person;

(c) of any conspiracy or solicitation to commit any of the offenses set forth in

subsections (a) or (b) of this section; or,

(b) aiding in the apprehension of the perpetrator of any of the offenses set forth in

this section.

No application or order shall be required if the interception is lawful under the provisions of § 2407(c) of this title.

Section 2407. Same -- Lawful disclosure or use of contents of communication

(a) Disclosure by investigative or law enforcement officer. Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer of any state, any political subdivision of a state, the United States, or any territory, protectorate, or possession of the United States, including the District of Columbia, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(b) Use of contents by officer. Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom or an investigative or law enforcement officer of any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States, including the District of Columbia who obtains such knowledge by lawful disclosure may use the contents to the extent that the use is appropriate to the proper performance of his official duties.

(c) Disclosure while giving testimony. Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States including the District of Columbia.

(d) Privileged character of communication not lost. Any contents of wire, oral or electronic communication intercepted in accordance with or in violation of the provisions of this chapter which would otherwise be considered privileged under the law, do not lose their privileged character through such interception.

(e) Communications relating to offenses not specified in order. When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used consistent with subsections (a), (b) or (c) of this section. The contents and any evidence derived therefrom may be used under subsection(c) of this section when authorized or approved by a judge authorized to receive intercept applications where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application should be made forthwith.

(f) Disclosure by law enforcement officers of other jurisdictions. Any investigative or law enforcement officer of any state or political subdivision of a state, the United States, or any territory, protectorate, or possession of the United States, including the District of Columbia, who has lawfully received any information concerning a wire, oral, or electronic communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State to receive pursuant to this chapter, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this State or any political subdivision of this State.

Section 2408. Same -- Ex parte order authorizing interception.

(a) Application. Any application for an order authorizing the interception of a wire, oral, or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make the application. Each application shall include the following information:

(1) The identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(2) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including:

(a) details as to the particular offense that has been, is being, or is

about to be committed;

(b) a description of the nature and location of the facilities from which

or the place where the communication is to be intercepted;

(c) a description of the type of communication sought to be

intercepted; and,

(d) the identity of the person, if known, committing the offense and

whose communications are to be intercepted;

(3) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why such procedures reasonably appear to be unlikely to succeed if tried or would be too dangerous if tried;

(4) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a description of facts establishing probable cause to believe additional communications of the same type will occur thereafter;

(5) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, which had been made to a judge for authorization to intercept wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken on each application; and

(6) When the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain the results.

(b) Additional evidence in support of applications. The judge may require the applicant to furnish additional testimony or documentary evidence in support of an application.

(c) Issuance of order. (1) Upon the application a judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications within the territorial jurisdiction permitted under paragraphs (2) or (3) of this subsection, if the judge determines on the basis of the facts submitted by the applicant that:

a. There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense enumerated in §2406 of this chapter;

b. There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

c. Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and

d. There is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by an individual engaged in criminal activity described.

(2) Except as provided in paragraph (3) of this subsection, an ex parte order issued under paragraph (1) of this subsection may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.

(3) If an application for an ex parte order is made by the Attorney General or other designee, an order issued under paragraph (1) of this subsection may authorize the interception of communications sent or received by a mobile telephone anywhere within the State so as to permit the interception of the communications regardless of whether the mobile telephone is physically located within the jurisdiction of the court in which the application was filed at the time of the interception, however, the application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.

(d) Contents of order. (1) Each order authorizing the interception of any wire, oral, or electronic communication shall specify:

a. The identity of the person, if known, whose communications are to be intercepted;

b. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

c. A description of the type of communication sought to be intercepted, and a statement of the offense to which it relates.

d. The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

e. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(2) An order authorizing the interception of a wire, oral, or electronic communication, upon request of the applicant, shall direct that a provider of wire or electronic communication service, landlord, custodian or other person furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person ordered by the court accords the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing the facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing facilities or assistance.

(e) Extensions. (1) An order entered under this section may not authorize the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered.

(2) Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) of this section and upon the court making the findings required by subsection (c) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days.

(3) Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days.

(4) In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. An interception under this chapter may be conducted in whole or in part by federal, State, or local government personnel, or by an individual operating under a contract with the State or a political subdivision of the State, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(5) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General or designee, who reasonably determines that:

a. an emergency situation exists that involves:

1. immediate danger of death or serious physical injury to any person;

1. activities related to escape or attempted escape from custody;

3. conspiratorial activities threatening the national security interest; or,

4. conspiratorial activities characteristic of organized crime, that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence be obtained; and,

b. there are grounds upon which an order could be entered under this chapter to authorize such interception;

may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within 48 hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (g) of this section on the person named in the application.

(f) Reports to issuing judge. Whenever an order authorizing interception is entered pursuant to this section, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the time and place required by the issuing judge.

(g) Recordings of contents of intercepted communications; sealing applications and orders; notice to parties. (1) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this section, if possible, shall be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in a way as will protect the recording from editing or other alternations as may be practicable. Upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever ordered by the issuing judge. The recordings may not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for lawful use or disclosure pursuant to the provisions of this chapter. The presence of the seal provided by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use of disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under this chapter.

(2) Applications made and orders granted under this subsection shall be sealed by the issuing or denying judge. Custody of the applications and orders shall be as ordered by that judge. The applications and orders shall be disclosed only upon a showing of good cause before that judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.

(3) Any violation of the provisions of this subsection may be punished as criminal contempt in violation of §1271 of this title by the issuing or denying judge.

(4) Within a reasonable time but not later than 90 days after the termination of the period of an order or extensions thereof, the issuing judge shall cause to be served, on the persons named in the order, and the other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of :

a. The fact of the entry of the order;

b. The date of the entry of the order and the period of authorized interception; and,

c. The fact that during the period, wire, oral, or electronic communications were or were not intercepted.

The judge, upon the filing of a motion, shall make available to the person or his counsel for inspection, portions of the intercepted communications, applications and orders pertaining to that person and the alleged crime.

(5) Upon an ex parte motion showing of good cause to the judge, the serving of any inventory required by this section may be delayed. The periods of delay may not be longer than the authorizing judge deems necessary to achieve the purposes for which such delay was granted and in no event for longer than 30 days. No more than three periods of delay may be granted. Any order issued extending the time in which the inventory notice is to be served must be under seal of the court and treated in the same manner as the order authorizing interception.

(h) Prerequisites to use of contents of communication as evidence. The contents of any intercepted wire, oral, or electronic communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any a trial, hearing, or other proceeding in the courts of this State unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order and accompanying application under which the interception was authorized. Where no application or order was required for the interception under the provisions of this chapter, each party, not less that 10 days before the trial, hearing or proceeding, shall be furnished with information concerning when, where and how the interception took place and why no application or order was required. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.

(i) Suppression of contents of communication; appeal from denial of application for order of approval.

(1) Any aggrieved person in any trial, hearing, or proceeding in or before any

court, department, officer, agency, regulatory body, or other authority of this State or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:

a. The communication was unlawfully intercepted;

b. The order of authorization under which it was intercepted is insufficient under this chapter; or

c. The interception was not made in conformity with the order of authorization granted under this chapter.

(2) This motion shall be made at least 10 days before the trial, hearing, or proceeding except upon good cause shown. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of the motion by the aggrieved person, in his discretion may make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

(3) In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval, if the Attorney General or Deputy Attorney General shall certify to the judge denying the application that the appeal is not taken for the purposes of delay. The appeal shall be taken within 30 days after the date the order was entered.

Section 2409. Same -- Reports to President Judge.

(a) Report by Judge. Within 30 days after the expiration of an order or an extension or renewal thereof entered under this chapter or the denial of an order confirming verbal approval of interception, the issuing or denying Judge shall make a report to the President Judge of the Superior Court stating that:

(1) An order, extension or renewal for which application was made;

(2) The type of order for which application was made;

(3) The order was granted as applied for, was modified or was denied;

(4) The period of the interceptions authorized by the order, and the number and duration of any extensions or renewals of the order;

(5) The offense specified in the order or extension or renewal of an order;

(6) The identity of the person authorizing the application and of the investigative or law enforcement officer and agency for whom it was made; and,

(7) The character of the facilities from which or the place where the communications were to be intercepted.

(b) Reports by Attorney General. The Attorney General or Deputy Attorney General specifically designated by the Attorney General shall make and file all reports required by federal law.

Section 2410. Same -- Civil liability; defense to civil or criminal action.

(a) Civil liability. Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and,

(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

(b) Defense. A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

Section 2411. Same -- Breaking and entering, etc., to place or remove equipment.

Any person who breaks and enters, enters under false pretenses, or trespasses, upon any premises with the intent to place, adjust or remove wiretapping or electronic surveillance or eavesdropping equipment without a court order shall be guilty of a Class C felony.

Section 2412. Same -- Hostage and barricade situations.

(a) The Superintendent of the Delaware State Police or the commander of the law enforcement agency of any political subdivision of this State may designate one or more law enforcement officers as a hostage and barricade communications specialist.

(b) Each communication common carrier providing service to Delaware residents shall designate one or more individuals to provide liaison with law enforcement agencies for the purposes of this section.

(c) The supervising law enforcement officer, who has jurisdiction in any situation in which there is probable cause to believe that a criminal enterprise involving hostage holding is occurring or that a person has barricaded himself within a structure and poses an immediate threat of physical injury to others, may order a communication common carrier, or a communication common carrier’s employee, officer, or director, or a hostage and barricade communications specialist to interrupt, reroute, divert, or otherwise control any wire, oral or electronic communications service involved in the hostage or barricade situation for the purpose of preventing wire, oral or electronic communication by a hostage holder or barricaded person with any person other than a law enforcement officer or a person authorized by the officer or for the purpose of otherwise monitoring communications in the hostage or barricade situation.

(d) A hostage and barricade communications specialist shall be ordered to act under subsection (c) only if the communication common carrier providing service in the area has been contacted and requested to act under subsection (c) and:

(1) Declines to respond to the officer’s request because of a threat of physical injury to its employees; or

(2) Indicates when contacted that it will be unable to respond appropriately to the officer’s request within a reasonable time from the receipt of the request.

(e) The supervising law enforcement officer may give an order under subsection (c) only after that supervising law enforcement officer has given written or oral representation of the hostage or barricade situation to the communication common carrier providing service to the area in which it is occurring. If an order is given based on an oral representation, the oral representation shall be followed by a written confirmation of that representation within 48 hours of the order.

(f) Good faith reliance on an order by a supervising law enforcement officer who has the real or apparent authority to issue an order under this section shall constitute a complete defense to any action against a communication common carrier or a communication common carrier’s employee, officer, or director that arises out of attempts by the communication common carrier or the employee, officer, or director of the communication common carrier to comply with such an order.

(g) For the purposes of this section, ‘supervising law enforcement officer’ means an officer having a rank equivalent to or greater than a lieutenant of any law enforcement agency of the state or any political subdivision of the state.

Section 2413. Same -- Obstruction, impediment or prevention of interception.

(a) Giving notice of interception. A person who has knowledge that an investigative or law enforcement officer has been authorized or has applied for authorization under this chapter to intercept wire, oral, or electronic communications, may not give notice or attempt to give notice of an authorized interception or pending application for authorization for interception to any other person in order to obstruct, impede or prevent such interception.

(b) Penalties. A person who violates the provisions of subsection (a) of this section shall be guilty of a Class F felony and be fined not more than $10,000.

Section 2421. Stored Wire and Electronic Communications and Transactional Records Access --Obtaining, altering or preventing authorized access.

(a) General Provisions. Except as provided in subsection (c) of this section, a person may not obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in an electronic communications system by:

(1) Intentionally accessing with authorization a facility through which an electronic communication service is provided; or

(2) Intentionally exceeding an authorization to access a facility through which an electronic communication service is provided.

(b) Penalties. A person who violates the provisions of subsection (a) of this section is subject to the following penalties:

(1) If the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain:

a. For a first offense, the person shall be guilty of a Class B misdemeanor and be fined not more than $250,000; and

b. For a second or subsequent offense, the person shall be guilty of a Class A misdemeanor and be fined not more than $250,000.

(2) In all other circumstances, the person shall be guilty of a Class B misdemeanor and be fined not more than $5,000.

(c) Applicability of section. Subsection (a) of this section does not apply to conduct authorized:

(1) By the person or entity providing a wire or electronic communications service;

(2) By a user of a wire or electronic communications service with respect to a communication of or intended for that user; or

(3) Under the provisions of this chapter.

Section 2422. Same -- Divulging contents of communications generally.

(a) Prohibited acts. (1) Except as provided in subsection (b) of this section, a person

or entity providing an electronic communications service to the public may not knowingly divulge to any other person or entity the contents of a communication while the communication is in electronic storage by that service.

(2) Except as provided in subsection (b) of this section, a person or entity providing remote computing service to the public may not knowingly divulge to any other person or entity the contents of any communication which is carried or maintained on that service which it has received:

a. On behalf of, and by means of computer processing of communication or by means of electronic transmission from, a subscriber or customer of the service; and,

b. Solely for the purpose of providing storage or computer processing

services to a subscriber or customer, if the provider is not authorized to access the contents of any communications for purposes of providing any services other than storage or computer processing.

(b) Lawful acts. A person or entity may divulge the contents of a communication:

(1) To an addressee or intended recipient of the communication or an agent of the addressee or intended recipient; or,

(2) With the lawful consent of the originator or an addressee or intended recipient of the communication, or the subscriber, in the case of remote computing service; or,

(3) To a person employed or authorized by facilities or services used to forward the communication to its destination;

(4) If necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(5) To a law enforcement agency, if the contents were inadvertently obtained by the service provider and appear to pertain to the commission of a crime; or,

(6) If otherwise authorized under the provisions of this chapter.

Section 2423. Same -- Disclosure of information.

(a) Disclosure of contents of communications to investigative or law enforcement officers by electronic communication service or remote computing service.

(1) An investigative or law enforcement officer may require a provider of electronic communication service or remote computing service to disclose the contents of an electronic communication that is in electronic storage in an electronic communications system or remote computing service for 180 days or less, only in accordance with a search warrant issued by a court of competent jurisdiction.

(2) An investigative or law enforcement officer may require a provider of electronic communication service or remote computing service to disclose the contents of an electronic communication that is in electronic storage in an electronic communications system or remote computing service for more than 180 days in accordance with the procedures provided under subsection (b) of this section.

(b) Procedures. (1) An investigative or law enforcement officer may require a provider of remote computing service to disclose the contents of an electronic communication to which this section applies:

a. Without notice to the subscriber or customer, if the officer obtains a search warrant issued by a court of competent jurisdiction; or

b. With prior notice to the subscriber or customer, if the officer:

1. Obtains a subpoena issued by a court of competent jurisdiction, a grand jury or authorized by Chapter 25 of Title 29 of this code; or

2. Obtains a court order requiring the disclosure under subsection (d) of this section.

(2) The procedures set forth in this subsection apply to any electronic communication that is held or maintained on a remote computer service which it has received;

a. On behalf of, and 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 the remote computing service; and,

b. Solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of any communication for purposes of providing any services other than storage or computer processing.

(c) Definition of ‘record or other information’. (1) For the purposes of this subsection, ‘record or other information’ does not include the contents of communications to which subsections (a) and (b) of this section apply.

(2) Except as provided in subparagraph (a) of this paragraph, a provider of

electronic communications service or remote computing service may not disclose a record or other information pertaining to a subscriber or customer of the service to any person other than an investigative or law enforcement officer.

a. A provider of electronic communications service or remote computing service shall disclose a record or other information pertaining to a subscriber to or a customer of the service to an investigative or law enforcement officer only if the officer:

1. Obtains a subpoena issued by a court of competent jurisdiction, a grand jury, or authorized by Chapter 25 of Title 29 of this code; or.

2. Obtains a search warrant from a court of competent jurisdiction;

3. Obtains a court order requiring the disclosure under subsection (d) of this section; or

4. Has the consent of the subscriber or customer to the disclosure.

(3) An investigative or law enforcement officer receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

(d) Court orders. (1) A court of competent jurisdiction may issue an order requiring disclosure under subsection (b) or (c) of this section only if the investigative or law enforcement officer shows that there is reason to believe the contents of an electronic communication that is in an electronic communications system or remote computing service, or the record or other information sought, are relevant to a legitimate law enforcement inquiry.

(2) A court issuing an order under this section may quash or modify the order, on a motion made promptly by the service provider, if the information or records requested are unusually voluminous in nature or if compliance with the order otherwise would cause an undue burden on the provider.

(e) Causes of action. Nothing in this chapter may be construed as creating a cause of action against any provider of electronic communication service or remote computing 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.

Section 2424. Same -- Backup copies of communications.

(a) Required by subpoena or court order; creation; notice to subscriber; destruction

(1) A subpoena or court order issued under §2423 of this title may include 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 the subpoena or court order, the service provider shall create a backup copy as soon as practicable consistent with the provider’s regular business practices and shall confirm to the investigative or law enforcement agency that the backup copy has been made. The service provider shall create a backup copy under this subsection within 2 business days after the day on which the service provider received the subpoena or court order.

(2) Except as provided in §2425 of this title, the investigative or law enforcement officer shall give notice to the subscriber or customer within 3 days after the day on which the governmental entity receives confirmation that a backup copy has been made under paragraph (1) of this subsection.

(3) The service provider may not destroy the backup copy until the later of:

a. The date delivery of the information; or

b. The resolution of any proceedings based upon the information provided, including appeals, or any proceedings concerning a subpoena or court order issued under §2423 of this title.

(4) The service provider shall release the backup copy to the requesting investigative or law enforcement officer no sooner than 14 days after the day on which the officer gives notice to the subscriber or customer, if the service provider:

a. Has not received notice from the subscriber or customer that the subscriber or customer has challenged the officer’s request; or,

b. Has not initiated proceedings to challenge the officer’s request.

(5) An investigative or law enforcement officer may seek to require the creation of a backup copy under subsection (a) (1) of this section if the officer determines that there is reason to believe that notification to the subscriber or customer under §2423 of this title of the existence of the subpoena or court order will result in destruction of or tampering with evidence. Such a determination under this paragraph is not subject to challenge by the subscriber or customer or service provider.

(b) Quashing subpoena; vacating court order. (1) Within 14 days after a subscriber or customer receives notice from an investigative or law enforcement officer under subsection (a) (2) of this section, the subscriber or customer may file a motion to quash the subpoena or vacate the court order. The subscriber or customer shall serve a copy of the motion on the investigative or law enforcement officer and give written notice of the challenge to the service provider. A motion to vacate a court order shall be filed in the court that issued the order. Any motion to quash a subpoena shall be filed in the Superior Court. Any motion or application under this subsection shall contain an affidavit or sworn statement averring:

a. That the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for the applicant have been sought; and,

b. 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) The applicant shall serve a copy of the motion or application on the investigative or law enforcement officer in accordance with the Rules of the Superior Court.

(3) If the court finds that the applicant has complied with paragraphs (1) and (2) of this subsection, the court shall order the investigative or law enforcement officer to file a sworn response, which may be filed in camera if the investigative or law enforcement officer includes in the response the reasons which make an in camera review appropriate.

a. 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 additional proceedings as it deems appropriate.

b. All such proceedings shall be completed and the motion or

application decided as soon as practicable after the filing of the investigative or law enforcement officer’s response.

(4) Findings of the court on application to quash.

1. If the court finds that the applicant is not the subscriber or

customer for whom the communications sought by the investigative or law enforcement officer 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, the court shall deny the motion or application and order the subpoena or court order to be enforced.

(b). If the court finds that the applicant is the subscriber or customer for whom the communications sought by the investigative or law enforcement officer are maintained, and that there is no 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, the court shall order the subpoena to be quashed or the court order to be vacated.

(5) Nature of order; no interlocutory appeal. A court order denying a motion or application under this subsection is not a final order and no interlocutory appeal may be taken by the customer.

Section 2425. Same -- Delay in giving notices.

(a) Definitions. When used in section:

(1) ‘Supervisory official’ means:

a. The Superintendent or Deputy Superintendent of the Delaware State Police;

b. The chief of police, deputy chief of police, or equivalent official of a law enforcement agency of any political subdivision of the state; or,

c. The Attorney General of the State, Chief Deputy Attorney General, State Prosecutor, Chief Prosecutor of any County, or a Deputy Attorney General.

(2) ‘Adverse result’ means:

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.

(b) Delaying Required Notices. An investigative or law enforcement officer acting under §2423 of this title, may:

(1) If a court order is sought, include in the application a request for an order delaying the notification required under §2424 of this title for a period not to exceed 90 days, which the court shall grant, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result; or

(2) If a subpoena issued by a court of competent jurisdiction or a grand jury or the Attorney General is obtained, delay the notification required under §2424 of this title for a period not to exceed 90 days, upon the execution of a written certification to a court of competent jurisdiction by a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result.

(c) The investigative or law enforcement officer shall maintain a true copy of a certification executed under subsection (b) (2) of this section.

(d) Extensions of a delay in notification may be granted by the court upon application or by certification by a supervisory official under the same procedures prescribed in subsection (b) of this section. An extension may not exceed 90 days.

(e) Upon expiration of the period of a delay of notification under subsections (b) or (d) of this section, the investigative or law enforcement officer shall serve upon by hand, or deliver by registered or first class mail to, the customer or subscriber a copy of the process or request together with a notice that:

(1) States with reasonable specificity the nature of the law enforcement inquiry; and

(2) Informs the customer or subscriber:

a. That information maintained for the customer or subscriber by the service provider named in the process or request was supplied to or requested by that investigative or law enforcement officer and the date on which the information was supplied or the request was made;

b. That notification of the customer or subscriber was delayed;

c. Of the identity of the investigative or law enforcement officer or court that made the certification or determination authorizing the delay; and

d. Of the statutory authority for the delay.

(f) Notices not required or previously delayed. If notice to the subscriber is not required under §2423(b)(1) of this title or if notice is delayed under subsection (b) or (d) of this section, an investigative or law enforcement officer acting under §2423 of this title may apply to a court for an order requiring 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 an order under this subsection if the court determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will have an adverse result.

Section 2426. Same -- Reimbursement of costs.

(a) General Provision. Except as otherwise provided in subsection (c) of this section, an investigative or law enforcement officer obtaining the contents of communications, records, or other information under §§ 2422, 2423 or 2424 of this title shall pay to the person or entity assembling or providing the information a fee for reimbursement for costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. Reimbursable costs shall include any costs due to necessary disruption of normal operations of an electronic communications service or remote computing service in which the information may be stored.

(b) Amount of fee. The amount of the fee authorized under subsection (a) of this section shall be mutually agreed upon by the investigative or law enforcement officer and the person or entity providing the information, or, in the absence of agreement, shall be determined by the court which issued the order for production of the information or the court in which a criminal prosecution relating to the information would be brought, if no court order was issued for production of the information.

(c) Exceptions. 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 §2423 of this title. The court may, however, order a payment described in subsection (a) of this section if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider.

Section 2427. Same -- Civil actions.

(a) Right to relief. Except as provided in subsection (e) of this section, a provider of electronic communication service, a subscriber or customer aggrieved by a knowing or intentional violation of §§2421-2425 of this title may recover appropriate relief in a civil action against the person or entity that engaged in the violation.

(b) Appropriate relief. In a civil action under this section, appropriate relief includes:

(1) Appropriate preliminary and other equitable or declaratory relief;

(2) Damages under subsection (c) of this section; 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 $1,000.

(d) Defenses. A good faith reliance on any of the following is a complete defense to any civil or criminal action brought under this section or any other law of this state:

(1) A court warrant or order, a grand jury or Attorney General’s subpoena, a legislative authorization, or a statutory authorization; or

(2) A good faith determination that §§2404 or 2423 of this title permitted the conduct that is the subject of the action.

(e) Limitations period. A civil action under this section shall be filed within 2 years after the day on which the claimant first discovered or had a reasonable opportunity to discover the violation.

Section 2430. Pen Registers and Trap and Trace Devices. -- Definition of ‘court of competent jurisdiction’.

When used in §§2431, 2432, 2433 or 2434, ‘court of competent jurisdiction’ means the Superior Court of this State.

Section 2431. Same -- Installation and use generally.

(a) Court order required. Except as provided in subsection (b) of this section, a person may not install or use a pen register or a trap and trace device without first obtaining a court order under Section §2433 of this title.

(b) Exceptions. Subsection (a) of this section does not apply to the use of a pen register or a trap and trace device by a provider of wire or electronic communication service:

(1) Relating to the operation, maintenance and testing of a wire or electronic service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; or

(2) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful, or abusive use of this service, or with the consent of the user of that service.

(c) Penalties. A person who violates subsection (a) of this section shall be guilty of a Class A misdemeanor and be fined not more than $5,000.

Section 2432. Same -- Application for order to install and use.

(a) General Provisions. An investigative or law enforcement officer may make application for an order or an extension of an order under §2433 of this title authorizing or approving the installation and use of a pen register or a trap and trace device, in writing, under oath or equivalent affirmation, to a court of competent jurisdiction of this State.

(b) Contents of Application. An application under subsection (a) of this section shall include:

(1) The identity of the law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and

(2) A statement under oath by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

Section 2433. Same -- Order authorizing installation and use.

(a) General Provisions. Upon an application made under §2432 of this title, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.

(b) Contents of Order. An order issued under this section shall:

(1) Specify the identity, if known, of the person to whom is leased or in whose name is listed the electronic communication service to which the pen register or trap and trace device is to be attached;

(2) Specify the identity, if known, of the person who is the subject of the criminal investigation;

(3) Specify the number and, if known, physical location of the electronic communication service to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order;

(4) Contain a description of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and

(5) Direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under §2434 of this title.

(c) Duration. (1) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days.

(2) Extensions of an order issued under this section may be granted upon an application for an order as prescribed by §2432 of this title and upon the judicial finding required under subsection (a) of this section. An extension may not exceed 60 days.

(d) Restrictions. An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:

(1) The order be sealed until further order of the court; and

(2) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.

Section 2434. Same -- Assistance to investigative or law enforcement officer or agency.

(a) Installation and use. Upon the request of an investigative or law enforcement officer authorized to install and use a pen register under this chapter, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer with all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person ordered by the court accords the party with respect to whom the installation and use is to take place, if such assistance is directed by a court order under §2433 of this title.

(b) Receipt of results. Upon the request of an officer of law enforcement agency authorized to receive the results of a trap and trace device under this chapter, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order under §2433 of this title. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order.

(c) Compensation. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance under this section shall be compensated for reasonable expenses incurred in providing the facilities and assistance.

(d) Causes of action. Nothing in this chapter may be construed as creating a cause of action against any provider of a 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 under §§2431, 2432, 2433 or 2434 of this title.

(e) Defenses. A good faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under §§ 2431, 2432, 2433 or 2434 of this title or under any other law.”

Section 2. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 3. Any action, case, prosecution, trial or any legal proceeding in progress under or pursuant to the previous wording of the sections amended by this Act, no matter what the stage of the proceeding, shall be preserved and shall not become illegal or terminated upon the effective date of this Act. For purposes of such proceedings in progress the prior law shall remain in full force and effect.

Approved July 23,1999