II 111th CONGRESS 2d Session S. 3214 IN THE SENATE OF THE UNITED STATES April 15, 2010 Mr. Specter (for himself, Mr. Feingold, and Mr. Kaufman) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit any person from engaging in certain video surveillance except under the same conditions authorized under chapter 119 of title 18, United States Code, or as authorized by the Foreign Intelligence Surveillance Act of 1978.
1.
Short title
This Act may be cited as the Surreptitious Video Surveillance Act of 2010.
2.
Prohibition on use of video surveillance
(a)
In general
Chapter 119 of title 18, United States Code, is amended by adding at the end the following:
2523.
Prohibition on use of video surveillance
(a)
Definition
In this section, the term video surveillance means the intentional acquisition, capture, or recording of a visual image or images of any individual if— (1)the individual is in an area of a temporary or permanent residence that is not readily observable from a public location; (2)the individual has a reasonable expectation of privacy in the area; and (3)the visual image or images— (A)are made without the consent of— (i)an individual present in the area; or (ii)a resident of the temporary or permanent residence; and (B)are— (i)produced using a device, apparatus, or other item that was mailed, shipped, or transported in or affecting interstate or foreign commerce by any means; or (ii)transported or transmitted, in or affecting, or using any means or facility of, interstate or foreign commerce, including by computer. (b)
Prohibition on video surveillance
It shall be unlawful for any person to engage in any video surveillance, except— (1)as provided in this section; or (2)as authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). (c)
Treatment as electronic surveillance
(1)
In general
Subject to paragraph (2)— (A)video surveillance shall be considered to be an interception of an electronic communication for the purposes of this chapter; and (B)it shall not be unlawful for a person to engage in video surveillance if the video surveillance is conducted in a manner or is of a type authorized under this chapter for the interception of an electronic communication. (2)
Exception
Sections 2511(2)(c), 2511(2)(d), 2512, 2513, and 2518(10)(c) shall not apply to video surveillance. (3)
Prohibition of use as evidence of video surveillance
(A)
In general
No part of the contents of video surveillance and no evidence derived from video surveillance 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 United States, a State, or political subdivision thereof if the disclosure of the video surveillance would be in violation of this chapter. (B)
Motion to suppress
(i)
In general
Any aggrieved person in any trial, hearing, or proceeding described in subparagraph (A) may move to suppress the contents of any video surveillance conducted under this chapter, or any evidence derived from the video surveillance, on the grounds that— (I)the video surveillance was unlawfully conducted; (II)the order of authorization or approval under which the video surveillance was conducted was insufficient on its face; or (III)the video surveillance was not conducted in conformity with the order of authorization or approval. (ii)
Timing of motion
A motion made under clause (i) shall be made before the trial, hearing, or proceeding unless— (I)there was no opportunity to make such motion; or (II)the aggrieved person described in clause (i) was not aware of the grounds of the motion. (iii)
Remedy
If the motion made under clause (i) is granted, the contents of the video surveillance, or evidence derived from the video surveillance, shall be treated as having been obtained in violation of this chapter. (iv)
Inspection of evidence
The judge, upon filing of a motion under clause (i), may, in the discretion of the judge, make available to the aggrieved person or counsel for the aggrieved person for inspection such portions of the video surveillance or evidence derived from the video surveillance as the judge determines to be in the interests of justice. (v)
Right to appeal
(I)
In general
In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion made under clause (i), or the denial of an application for an order of approval, if the United States attorney certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. (II)
Filing deadline
An appeal under subclause (I) shall— (aa)be taken within 30 days after the date the order was entered; and (bb)be diligently prosecuted.
. (b)
Chapter analysis
The table of sections for chapter 119 of title 18, United States Code, is amended by adding at the end the following: 2523. Prohibition on use of video surveillance. .