1 2 3 "(4) when necessary for a legitimate business purpose. 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "(c) REQUIREMENTS FOR CONSENT EXCEPTION. "(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 user "(A) specifying what information will be disclosed and who the specific recipient of that dis closure will be; and "(B) given under the circumstances in which the user understands that the user may prohibit that disclosure without being refused services or suffering other discrimination. "(2) ALTERNATIVE CONSENT.-In the case of a disclosure limited to the name and address of the user, that does not, directly or indirectly, reveal the category of service, or the title, description, or subject matter of service used, it is also sufficient consent for the pur poses of the exception under subsection (b)(2) that— "(A) the provider has given the user an opportunity to prohibit such disclosure; 1 2 3 4 5 6 7 8 9 4 "(B) such opportunity is given— “(i) in a writing which clearly and con spicuously specifies what information will be disclosed; and "(ii) under the circumstances described in paragraph (1)(B); and "(C) the user may exercise that opportunity by making an appropriate mark on such writing. "(d) REQUIREMENTS FOR COURT ORDER FOR LAW 10 ENFORCEMENT EXCEPTION.— “(1) IN GENERAL.-A court may order disclosure of personally identifiable information about a user of covered services to a Federal law enforcement agency or a State law enforcement agency authorized by State statute to seek such disclosure, if— "(A) the user is given notice and afforded an opportunity to appear and contest such order; and "(B) the law enforcement agency makes the showing described in paragraph (2). "(2) WHAT THE AGENCY MUST SHOW.-In a court proceeding to issue an order under this subsec tion the law enforcement agency must show “(A) by clear and convincing evidence that the user has engaged in criminal activity; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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 ous to try; and "(D) why, in the particular and individual circumstances of this case, the value of the infor mation sought outweighs the competing privacy interests. "(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 20 21 22 23 24 25 "(1) such equitable and declaratory relief as may be appropriate; “(2) actual damages, but not less than the liquidated amount of $2,500; “(3) punitive damages in appropriate cases; and “(4) reasonable attorneys' fees and other litigation expenses reasonably incurred. 6 1 "(f) DEFINITIONS OF COVERED ENTITIES AND SERV 2 ICES. For purposes of this section "(1) the term 'video service provider or library' means “(A) any publicly owned library open to the general public; “(B) any library in a primary, secondary, or post secondary education institution "(i) that is a public institution; or "(ii) any part of which receives Federal financial assistance; "(C) any person or other entity engaging in a business that includes the renting or selling of prerecorded video tapes or similar audiovisual materials that "(i) operates in or affects interstate or foreign commerce; or "(ii) is supplied with video tapes to rent or sell through distributors that operate in interstate or foreign commerce; "(D) any person or other entity to whom a disclosure is made under subsection (b)(4), but only with respect to the information contained in that disclosure; or 1 2 3 4 5 6 7 8 9 10 11 12 7 "(E) any person acting as an agent of an entity described in subparagraphs (A) through (D), but only with respect to information obtained from such entity; and "(2) the term 'covered services' means "(A) with respect to a library, all the services of the library; and "(B) with respect to a provider of prerecorded video tapes or similar audiovisual materials, those services involving or incident to providing such tapes or materials. “(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; 20 21 22 and (2) by inserting after the item relating to section 2709 the following new item: "2710. Wrongful disclosure of information relating to library use or video tape rental or sale.". |