3

1

"(4) when necessary for a legitimate business

3 For the purposes of this subsection, engaging in the conduct 4 prohibited by subsection (a) is not in itself a legitimate busi

5 ness purpose.

6

"(c) REQUIREMENTS FOR CONSENT EXCEPTION.

7

8

“(1) IN GENERAL.—Except as provided in paragraph (2), the consent required for the exception under subsection (b)(2) is the prior written consent of the

9

10

user

18

“(2) ALTERNATIVE CONSENT.-In the case of a

19

disclosure limited to the name and address of the user,

20

that does not, directly or indirectly, reveal the category

21

of service, or the title, description, or subject matter of

22

service used, it is also sufficient consent for the pur

23

poses of the exception under subsection (b)(2) that,

24

“(A) the provider has given the user an op

25

portunity to prohibit such disclosure;

8

by making an appropriate mark on such writing. "d) REQUIREMENTS FOR COURT ORDER FOR LAW

9

16

“(A) the user is given notice and afforded an opportunity to appear and contest such order; and

17

18

"(B) the law enforcement agency makes the

19

showing described in paragraph (2).

20

"(2) WHAT THE AGENCY MUST SHOW.-In a

21

court proceeding to issue an order under this subsec

22

23

tion the law enforcement agency must show

“(A) by clear and convincing evidence that the user has engaged in criminal activity;

24

5

1

2

3

4

5

"(B) that the information sought would be highly probative in a criminal proceeding relating to that activity;

“(C) that other specifically named and less intrusive investigative procedures have been tried and failed, and the particular details of that attempt and failure, or why the peculiar circumstances of this case make it reasonably appear that other less intrusive investigative procedures are unlikely to succeed if tried or are too danger

6

7

8

9

10

11

ous to try; and

12

“(D) why, in the particular and individual

13

circumstances of this case, the value of the infor

14

mation sought outweighs the competing privacy

15

interests.

16

“(e) CIVIL REMEDY.—Any person or entity (including a

17 governmental entity) that violates subsection (a) shall be 18 liable to any person aggrieved by that violation for

19

“(1) such equitable and declaratory relief as may

“(2) actual damages, but not less than the liqui

“(3) punitive damages in appropriate cases; and

“(4) reasonable attorneys' fees and other litigation expenses reasonably incurred.

25

6

1

"(f) DEFINITIONS OF COVERED ENTITIES AND SERV

2 ICES.-For purposes of this section

3

“(1) the term 'video service provider or library'

7

"(B) any library in a primary, secondary, or post secondary education institution

8

9

“(i) that is a public institution; or

10

“(i) any part of which receives Federal

11

financial assistance;

12

13

“(C) any person or other entity engaging in a business that includes the renting or selling of prerecorded video tapes or similar audiovisual

14

15

materials that

22

disclosure is made under subsection (b)(4), but

23

only with respect to the information contained in

24

that disclosure; or

7

1

"(E) any person acting as an agent of an

entity described in subparagraphs (A) through (D),

12

"(g) PREEMPTION.—The section preempts only those

13 provisions of State or local law that require disclosure which

14 this section prohibits.”.

15

(b) CLERICAL AMENDMENT.—The table of sections at

16 the beginning of chapter 121 of title 18, United States Code,

17 is amended

18

(1) in the item relating to section 2710, by strik

19

ing out “2710” and inserting “2711” in lieu thereof;

(2) by inserting after the item relating to section

“2710. Wrongful disclosure of information relating to library use or video tape