H 3438 General Bill, By Fleming, Altman, Askins, Bailey, Bauer, Cato, Keegan, 
Kirsh, Limehouse, Littlejohn, Lloyd, Maddox, Mason, McCraw, Meacham, 
V.T. Mullen, Phillips, Riser, Robinson, Scott, Seithel, Simrill, Stille, Stuart, 
Tripp and W.J. Young
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 30
 TO TITLE 17 SO AS TO PROVIDE PROCEDURES TO CONDUCT WIRE AND ELECTRONIC
 COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS.

   02/12/97  House  Introduced and read first time HJ-13
   02/12/97  House  Referred to Committee on Judiciary HJ-14

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 30 TO TITLE 17 SO AS TO PROVIDE PROCEDURES TO CONDUCT WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 17 of the 1976 Code is amended by adding:

Section 17-30-10. As used in this chapter:

(1) '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 engaged in providing or operating these facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and this term includes any electronic storage of these communications.

(2) 'Oral communication' means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying this expectation, but the term does not include any electronic communication.

(3) 'State' means the State of South Carolina.

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

(5) 'Electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

(a) any telephone or telegraph instrument, equipment or facility, or any component of these devices:

(i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and 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

(ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

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

(6) 'Person' means an employee or agent of the State or political subdivision of it, or any individual, partnership, association, joint stock company, trust, or corporation.

(7) 'Investigative or law enforcement officer' means an officer of the State Law Enforcement Division, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, or an attorney authorized by law to prosecute or participate in the prosecution of these offenses.

(8) 'Contents', when used with respect to any wire, oral, or electronic communication, include any information concerning the substance, purport, or meaning of that communication.

(9) 'Judge' means the chief judge for administrative purposes of the Fifth Judicial Circuit for general sessions.

(10) 'Communication common carrier' shall have the same meaning which is given the term 'common carrier' by Section 153(h), Title 47, United States Code.

(11) '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.

(12) 'Electronic communication' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include any:

(a) wire or oral communication;

(b) communication made through a tone-only paging device; or

(c) communication from a tracking device as defined in Section 3117, Title 18, United States Code.

(13) 'User' means any person or entity who:

(a) uses an electronic communication service; and

(b) is authorized by the provider of such service to engage in such use.

(14) 'Electronic communications system' means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of these communications.

(15) 'Electronic communication service' means any service which provides to users of it the ability to send or receive wire or electronic communications.

(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 whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;

(c) carried on a subcarrier or other signal subsidiary to a radio transmission;

(d) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication;

(e) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or

(f) an electronic communication.

(17) 'Electronic storage' means any:

(a) temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of it; and

(b) storage of the communication by an electronic communication service for purposes of backup protection of the communication.

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

Section 17-30-20. (A) Except as otherwise specifically provided in this chapter a person must be punished as provided in Section 17-30-20(D) or is subject to suit as provided in Section 17-30-20(E) who:

(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) intentionally uses, endeavors to use, or procures another person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the:

(a) device is affixed to, or otherwise transmits a signal through, a wire, cable, or other similar connection used in wire communication; or

(b) device transmits communications by radio, or interferes with the transmission of the communication; or

(c) use or endeavor to use:

(i) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(ii) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce;

(3) intentionally discloses, or endeavors to disclose, to another 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 subsection;

(4) intentionally uses, or endeavors 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 subsection; or

(5)(a) intentionally discloses, or endeavors to disclose, to another person the contents of any wire, oral, or electronic communication, intercepted by means authorized by this chapter;

(b) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation;

(c) having obtained or received the information in connection with a criminal investigation; and

(d) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.

(B) It is not unlawful under this chapter for:

(1) 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 a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary 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 communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;

(2) an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the commission in the enforcement of Chapter 5, Title 47, United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information obtained;

(3) a person acting under color of law to intercept a wire, oral, or electronic communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

(4) a person not acting under color of law 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 a criminal or tortious act in violation of the Constitution or laws of this State;

(5) a person to intercept:

(a) 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) a radio communication which is transmitted by:

(i) a station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

(ii) a governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

(iii) a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

(iv) any marine or aeronautical communications system;

(c) 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 interference; or

(d) 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 such system, if the communication is not scrambled or encrypted.

(6)(a) a person to use a pen register or a trap and trace device as those terms are defined in Chapter 29 of Title 17; or

(b) 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.

(C)(1) Except as provided in Section 17-30-20(C)(2) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication, other than one to the person or entity, or their agent, 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.

(2) A person or entity providing electronic communication service to the public may divulge the contents of these communications:

(a) as authorized in this section or Section 17-30-60 of this chapter;

(b) with the lawful consent of the originator or any addressee or intended recipient of the communication;

(c) to a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

(d) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if the divulgence is made to a law enforcement agency.

(D)(1) Except as provided in Section 17-30-20(D)(2) or (E), a person who violates Section 17-30-20(A) must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

(2) If the offense is a first offense under Section 17-30-20(D)(1) and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under Section 17-30-20(D)(1) is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then the communication is:

(a) not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, and the conduct is not that described in Section 17-30-20(E), the offender must be fined not more than one thousand dollars or imprisoned not more than one year, or both; and

(b) the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender must be fined not more than five hundred dollars.

(3) Conduct otherwise an offense under this subsection that 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, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain.

(E)(1)(a) If the communication is a:

(i) private satellite video communication that is not scrambled or encrypted and the conduct in violation of this chapter 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

(ii) radio communication that is transmitted on frequencies allocated under subpart D, part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this chapter is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the person who engages in the conduct is subject to suit by the State in a court of competent jurisdiction.

(b) In an action under this subsection if the violation of this chapter is a:

(i) first offense for the person under Section 17-30-20(D)(1) and the person has not been found liable in a civil action under Section 17-30-90, the State is entitled to appropriate injunctive relief; and

(ii) if the violation of this chapter is a second or subsequent offense under Section 17-30-20(D)(1) or the person has been found liable in a prior civil action under Section 17-30-90, the person is subject to a mandatory five hundred dollar fine.

(2) The court may use any means within its authority to enforce an injunction issued under Section 17-30-20(D)(3)(b)(i), and shall impose a fine of not less than five hundred dollars for each violation of an injunction.

Section 17-30-30. (A) Except as otherwise specifically provided in this chapter, a person is guilty of a felony who intentionally:

(1) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;

(2) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that the device or any component of it has been or will be sent through the mail or transported in interstate or foreign commerce; or

(3) places in any newspaper, magazine, handbill, or other publication any advertisement of any:

(a) electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or

(b) electronic, mechanical, or other device, where the advertisement promotes the use of the device for the purpose of the surreptitious interception of wire, oral, or electronic communications, knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce.

(B) Upon conviction of a provision contained in subsection (A), a person must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

(C) It is not unlawful under this section for:

(1) a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with the provider in the normal course of the business of providing that wire or electronic communication service; or

(2) an officer, agent, or employee of, or a person under contract with, the State, or a political subdivision of it, in the normal course of the activities of the State, or a political subdivision of it, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.

Section 17-30-40. Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of Section 17-30-20 or 17-30-30 may be seized and forfeited to the State.

Section 17-30-50. Whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived from it 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 the State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

Section 17-30-60. The Attorney General, or his designee, may authorize an application to a judge for, and the judge may grant in conformity with Section 17-30-80, an order authorizing or approving the interception of wire or oral communications by the State Law Enforcement Division, when the interception may provide or has provided evidence that a person is committing or has committed an act which endangers the national security of the United States or the security of this State or that the person is committing or has committed the crime of treason, insurrection, rebellion, murder, espionage, sabotage, or a felony involving bodily harm, or a crime involving arson, kidnapping, narcotics, dangerous drugs, importation or sale of marijuana or a controlled substance, burglary, prostitution, theft, blackmail, extortion, bribery, gambling, racketeering activity, or a felony involving alcoholic beverage laws or auto thefts, or if there is probable cause to believe that a private place is being utilized or has been utilized for the commission of a crime contained in this section.

Section 17-30-70. (A) Any investigative or law enforcement officer who, as authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from it, may disclose the contents to another investigative or law enforcement officer 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) Any investigative or law enforcement officer who, as authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived from it may use the contents to the extent the use is appropriate to the proper performance of his official duties.

(C) A person who has received, as authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived from it 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 the State or political subdivision of it.

(D) No privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.

(E) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized in this section, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents of it, and evidence derived from it, may be disclosed or used as provided in Section 17-30-70(A) and (B). The contents and any evidence derived from it may be used under Section 17-30-70(C)when authorized or approved by a judge where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. The application must be made as soon as practicable.

Section 17-30-80. (A) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter must be made in writing upon oath or affirmation to a judge 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 of the offense that has been, is being, or is about to be committed;

(b) except as provided in Section 17-30-80(L), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(c) a particular description of the type of communications sought to be intercepted;

(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 they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(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 particular description of facts establishing probable cause to believe that additional communications of the same type will occur;

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

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

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

(C) Upon application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications, if the judge determines on the basis of the facts submitted by the applicant that:

(1) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in Section 17-30-60;

(2) there is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

(3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(4) except as provided in subsection (L), 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 the person.

(D) Each order authorizing or approving the interception of any wire, oral, or electronic communication under this chapter shall specify:

(1) the identity of the person, if known, whose communications are to be intercepted;

(2) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(3) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(4) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and (5) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(E) An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant with 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 is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing these facilities or technical assistance must be compensated for this service by the applicant for reasonable expenses incurred in providing the facilities or assistance.

(F) No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for a period longer than is necessary to achieve the objective of the authorization, nor longer than thirty days. The thirty-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 ten days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with Section 17-30-80(A) and the court making the findings required by Section 17-30-80(C) of this section. The period of extension must be no longer than the authorizing judge determines necessary to achieve the purposes for which it was granted and no longer than thirty days. Every order and extension of an order shall contain a provision that the authorization to intercept must be:

(1) executed as soon as practicable;

(2) conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter; and

(3) terminated upon attainment of the authorized objective, or in thirty days.

If 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 government personnel, or by an individual operating under a contract with the government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(G) Whenever an order authorizing interception is entered pursuant to this chapter, the order may 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 must be made at intervals the judge may require.

(H)(1) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, or his designee, 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 forty-eight hours after the interception has occurred, or begins to occur if he reasonably determines that:

(a) an emergency situation exists that involves:

(i) immediate danger of death or serious physical injury to a person;

(ii) conspiratorial activities threatening the national security interest; or

(iii) conspiratorial activities characteristic of organized crime that require 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.

(2) In the absence of an order, the interception shall terminate immediately when the communication sought is obtained or when the application for the order is denied, whichever occurs earlier. If the application for approval is denied, or if the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted must be treated as having been obtained in violation of this chapter, and an inventory must be served as provided for in Section 17-30-80(I)(4) on the person named in the application.

(I)(1) The contents of any wire, oral, or electronic communication intercepted as authorized by this chapter must be recorded, if possible, on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection must be done to protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of it, the recordings must be made available to the judge issuing the order and sealed under his directions. Custody of the recordings must be wherever the judge orders. They must not be destroyed except upon an order of the issuing or denying judge and must be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of Section 17-30-70(A) and (B) for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence of it, must be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived under Section 17-30-70(C).

(2) Applications made and orders granted under this chapter must be sealed by the judge. Custody of the applications and orders must be wherever the judge directs. The applications and orders must be disclosed only upon a showing of good cause before a judge of competent jurisdiction and must not be destroyed except on order of the issuing or denying judge, and must be kept for ten years.

(3) Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge.

(4)(a) Not more than ninety days after the filing of an application for an order of approval under Section 17-30-80(H) which is denied or the termination of the period of an order or extensions of it, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which includes notice of:

(i) the fact of the entry of the order or the application;

(ii) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(iii) the fact that during the period wire, oral, or electronic communications were or were not intercepted.

(b) The judge, upon the filing of a motion, in his discretion may make available to the person or his counsel for inspection the portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.

(J) The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or evidence derived from it must not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a federal or state court unless each party, not less than ten 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 or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with this information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving this information.

(K)(1) An aggrieved person in a trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a state, or a political subdivision of it, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived from it, on the grounds that:

(a) the communication was unlawfully intercepted;

(b) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(c) the interception was not made in conformity with the order of authorization or approval.

(2) The motion must be made before the trial, hearing, or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived from it, must 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 the portions of the intercepted communication or evidence derived from it 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 an order granting a motion to suppress made under Section 17-30-80(K)(1), or the denial of an application for an order of approval, if the Attorney General, or his designee, certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal must be taken within thirty days after the date the order was entered and must be diligently prosecuted.

(4) The remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving these communications.

(L) The requirements of Section 17-30-80(A)(2)(b) and (C)(4) relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:

(1) in the case of an application with respect to the interception of an oral communication:

(a) the application is by an agent of the State Law Enforcement Division and is approved by the Attorney General, or his designee;

(b) the application contains a full and complete statement explaining why the specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and

(c) the judge finds that such specification is not practical; and

(2) in the case of an application with respect to a wire or electronic communication:

(a) the application is by an agent of the State Law Enforcement Division and is approved by the Attorney General, or his designee;

(b) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and

(c) the judge finds that the purpose has been adequately shown.

(M) An interception of a communication under an order with respect to which the requirements of Section 17-30-80(A)(2)(b) and (C)(4) of this section do not apply pursuant to Section 17-30-80(L) shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided for in Section 17-30-80(L)(2) may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall decide the motion expeditiously.

Section 17-30-90. (A) Within thirty days after the expiration of an order or each extension of it, entered under Section 17-30-80, or the denial of an order approving an interception, the issuing or denying judge shall report to the Court Administration:

(1) the fact that an order or extension was applied for;

(2) the kind of order or extension applied for, including whether or not the order was an order with respect to which the requirements of Section 17-30-80(A)(2)(b) and (C)(4) do not apply pursuant to Section 17-30-80(L);

(3) the fact that the order or extension was granted as applied for, was modified, or was denied;

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

(5) the offense specified in the order or application, or extension of an order;

(6) the identity of the applying investigative or law enforcement officer and agency making the application and the person authorizing the application; and

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

(B) In January of each year the Attorney General shall report to the Court Administration:

(1) the information required by Section 17-30-90(A)(1) through (7) with respect to each application for an order or extension made during the preceding calendar year;

(2) a general description of the interceptions made under the order or extension, including the approximate:

(a) nature and frequency of incriminating communications intercepted;

(b) nature and frequency of other communications intercepted;

(c) number of persons whose communications were intercepted; and

(d) nature, amount, and cost of the manpower and other resources used in the interceptions;

(3) the number of arrests resulting from interceptions made under the order or extension, and the offenses for which arrests were made;

(4) the number of trials resulting from the interceptions;

(5) the number of motions to suppress made with respect to the interceptions, and the number granted or denied;

(6) the number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions; and

(7) the information required by Section 17-30-90(B)(2) through (6) with respect to orders or extensions obtained in a preceding calendar year.

(C) In April of each year the Director of Court Administration shall transmit to the General Assembly a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire, oral, or electronic communications pursuant to this chapter and the number of orders and extensions granted or denied pursuant to this chapter during the preceding calendar year. The report shall include a summary and analysis of the data required to be filed with the Court Administration by Section 17-30-90(A) and (B).

Section 17-30-100. (A) A person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation the relief as may be appropriate.

(B) In an action under this section, appropriate relief includes:

(1) preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under Section 17-30-100(C) and punitive damages in appropriate cases; and

(3) a reasonable attorney's fee and other litigation costs reasonably incurred.

(C) In an action under this section, if the conduct in violation of this chapter is the private viewing of a private satellite video communication that is not scrambled or encrypted, or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D, part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess damages as follows:

(1) If the person who engaged in that conduct has not previously been enjoined under Section 17-30-20(E) and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than fifty dollars and not more than five hundred dollars.

(2) If, on one prior occasion, the person who engaged in that conduct has been enjoined under Section 17-30-20(E) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less than one hundred dollars and not more than one thousand dollars.

(D) In any other action under this section, the court may assess as damages whichever is the greater of:

(1) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(2) statutory damages of whichever is the greater of one hundred dollars a day for each day of violation or ten thousand dollars.

(E) A good faith reliance on the following is a complete defense against any civil or criminal action brought under this chapter or any other law:

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under Section 17-30-80(H); or

(3) a good faith determination that Section 17-30-20(C) permitted the conduct complained.

(F) A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

Section 17-30-110. Whenever it shall appear that a person is engaged or is about to engage in an act which constitutes or will constitute a felony violation of this chapter, the Attorney General, or his designee, may initiate a civil action in circuit court to enjoin the violation. The court shall proceed as soon as practicable to the hearing and determination of the action, and, at any time before final determination, may enter a restraining order or prohibition, or take other action, as is warranted to prevent a continuing and substantial injury to the State or to a person or class of persons for whose protection the action is brought.

Section 17-30-120. The Attorney General and the Chief of the State Law Enforcement Division shall establish a course of training in the legal and technical aspects of wiretapping and electronic surveillance, and shall establish regulations necessary and proper for the training program and minimum standards for certification and periodic recertification of a law enforcement officer eligible to conduct wiretapping or electronic surveillance under this chapter. SLED shall charge a law enforcement officer who enrolls in this training program an enrollment fee to offset the costs of the training."

SECTION 2. This act takes effect upon approval by the Governor.