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CRM 1000-1499

1056. Exceptions for the Interception of Certain Electronic Communications

Because the definition of an electronic communication, as added by the 1986 Act, is so broad and all-inclusive, it became necessary to carve out some forms of electronic communications that either appeared not to be deserving of privacy protection or where a policy decision was made by Congress not to include a specific form of electronic communication. The exceptions appear in Title III either as exceptions to defined terms in 18 U.S.C. § 2510(12) or as exceptions to unlawful activity in Section 2511(2)(g). The exceptions in Section 2510 include tone only paging devices (18 U.S.C. § 2510(12)(B)); communications from tracking devices (Id. § 2510(12)(C)); and electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds (Id. § 2510(12)(D)).

The exceptions to unlawful activity listed in § 2511(2)(g) include electronic communications that are "readily accessible to the general public," as that term is defined in 18 U.S.C. § 2510(16), and radio communications that are for the use of the general public, including ship to shore general public type communications, public safety communications, citizen band radio, general mobile radio services and the like. Id. § 2511(2)(g). This subsection also contains other specific exceptions relating to interaction with the Federal Communications Act or where there is a necessity to service the system or locate interference. Id.In addition, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication while in transmission on that service except as otherwise authorized in Title III, or with the consent of the originator or intended recipient of the communication. Divulgence to a law enforcement agency is permitted if the communication was inadvertently obtained by the service provider and appeared to pertain to the commission of a crime. 18 U.S.C. § 2511(3).

[cited in JM 9-60.200]