TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 24. WIRETAPPING, ELECTRONIC SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS

Subchapter II. Stored Wire and Electronic Communications and Transactional Records 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.

72 Del. Laws, c. 232, § 1.;

(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;

(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;

(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.

72 Del. Laws, c. 232, § 1.;

(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 as authorized by Chapter 25 of Title 29; 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 that 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 this subdivision, 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 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:

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

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

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

d. 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 is 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, such service's officers, employees, or 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.

72 Del. Laws, c. 232, § 1.;

(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 of 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 paragraph (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 paragraph (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 of 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 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.

(c) 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.

(2) 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 this chapter, the court shall order the subpoena to be quashed or the court order to be vacated.

(d) 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.

72 Del. Laws, c. 232, § 1.;

(a) Definitions. — When used in this 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 paragraph (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 subsection (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.

72 Del. Laws, c. 232, § 1.;

(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.

72 Del. Laws, c. 232, § 1.;

(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 § 2403 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.

72 Del. Laws, c. 232, § 1.;