SF 3072

1st Engrossment - 91st Legislature (2019 - 2020) Posted on 08/20/2020 09:00am

A bill for an act
relating to public safety; modifying criteria for publishing court of appeals opinions;
requiring a government entity to obtain a search warrant before accessing electronic
communication information; regulating use of unmanned aerial vehicles; classifying
data; making clarifying, conforming, and technical changes; expanding the scope
of location tracking warrants; amending Minnesota Statutes 2018, sections 13.82,
subdivision 15, by adding a subdivision; 480A.08, subdivision 3; 626A.08,
subdivision 2; 626A.26, subdivision 3; 626A.27, subdivision 2; 626A.28,
subdivisions 3, 4, 5; 626A.31, subdivision 1; 626A.37, subdivision 4; 626A.42,
subdivisions 1, 2, 3, 5; proposing coding for new law in Minnesota Statutes, chapter
626; repealing Minnesota Statutes 2018, sections 626A.28, subdivisions 1, 2;
626A.29; 626A.30.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 13.82, subdivision 15, is amended to read:

Subd. 15.

Public benefit data.

Any law enforcement agency may make any data
classified as confidential or protected nonpublic pursuant to subdivision 7 or as private or
nonpublic under section 13.825 new text begin or 626.19 new text end accessible to any person, agency, or the public
if the agency determines that the access will aid the law enforcement process, promote
public safety, or dispel widespread rumor or unrest.

Sec. 2.

Minnesota Statutes 2018, section 13.82, is amended by adding a subdivision to
read:

new text begin Subd. 32. new text end

new text begin Unmanned aerial vehicles. new text end

new text begin Section 626.19 governs data collected, created,
or maintained through the use of an unmanned aerial vehicle.
new text end

Sec. 3.

Minnesota Statutes 2018, section 480A.08, subdivision 3, is amended to read:

Subd. 3.

Decisions.

(a) A decision shall be rendered in every case within 90 days after
oral argument or after the final submission of briefs or memoranda by the parties, whichever
is later. The chief justice or the chief judge may waive the 90-day limitation for any
proceeding before the court of appeals for good cause shown. In every case, the decision
of the court, including any written opinion containing a summary of the case and a statement
of the reasons for its decision, shall be indexed and made readily available.

(b) The decision of the court need not include a written opinion. A statement of the
decision without a written opinion must not be officially published and must not be cited
as precedent, except as law of the case, res judicata, or collateral estoppel.

deleted text begin (c) The court of appeals may publish only those decisions that:
deleted text end

deleted text begin (1) establish a new rule of law;
deleted text end

deleted text begin (2) overrule a previous court of appeals' decision not reviewed by the supreme court;
deleted text end

deleted text begin (3) provide important procedural guidelines in interpreting statutes or administrative
rules;
deleted text end

deleted text begin (4) involve a significant legal issue; or
deleted text end

deleted text begin (5) would significantly aid in the administration of justice.
deleted text end

deleted text begin Unpublished opinions of the court of appeals are not precedential. Unpublished opinions
must not be cited unless the party citing the unpublished opinion provides a full and correct
copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing,
or trial. If cited in a brief or memorandum of law, a copy of the unpublished opinion must
be provided to all other counsel at the time the brief or memorandum is served, and other
counsel may respond.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2020, and applies to cases
filed at the Minnesota Court of Appeals on or after that date.
new text end

Sec. 4.

new text begin [626.085] SEARCH WARRANT REQUIRED FOR ELECTRONIC
COMMUNICATION INFORMATION.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin As used in this section, the following terms have the meanings
given them:
new text end

new text begin (1) "electronic communication" means the transfer of signs, signals, writings, images,
sounds, data, or intelligence of any nature in whole or in part by a wire, radio,
electromagnetic, photoelectric, or photo-optical system;
new text end

new text begin (2) "electronic communication information" means any information about an electronic
communication or the use of an electronic communication service, limited to the contents
of electronic communications and precise or approximate location of the sender or recipients
at any point during the communication;
new text end

new text begin (3) "electronic communication service" has the meaning given in section 626A.01,
subdivision 17; and
new text end

new text begin (4) "government entity" has the meaning given in section 626A.42, subdivision 1,
paragraph (d).
new text end

new text begin Subd. 2. new text end

new text begin Warrant required; exceptions. new text end

new text begin (a) Except as provided in paragraph (b), a
government entity must obtain a search warrant to require disclosure of electronic
communication information.
new text end

new text begin (b) A government entity may request disclosure of electronic communication information
without a search warrant if the agency has valid consent from one authorized to give it, or
exigent circumstances exist where there is a danger to the life or physical safety of an
individual.
new text end

new text begin Subd. 3. new text end

new text begin Notice to subject. new text end

new text begin A government entity accessing electronic communication
information under subdivision 2 must provide notice to the subject of the information
consistent with the requirements of subdivision 4 and section 626.16.
new text end

new text begin Subd. 4. new text end

new text begin Notice; temporary nondisclosure of search warrant. new text end

new text begin (a) Within a reasonable
time but not later than 90 days after the court unseals the search warrant under this
subdivision, the issuing or denying judge shall cause to be served on the persons named in
the warrant and the application an inventory which shall include notice of:
new text end

new text begin (1) the issuance of the warrant or the application;
new text end

new text begin (2) the date of issuance and the period of authorized, approved, or disapproved collection
of electronic communication information, or the denial of the application; and
new text end

new text begin (3) whether electronic communication information was or was not collected during the
period.
new text end

new text begin (b) A search warrant authorizing collection of electronic communication information
must direct that:
new text end

new text begin (1) the warrant be sealed for a period of 90 days or until the objective of the warrant has
been accomplished, whichever is shorter; and
new text end

new text begin (2) the warrant be filed with the court administrator within ten days of the expiration of
the warrant.
new text end

new text begin (c) The prosecutor may request that the search warrant, supporting affidavits, and any
order granting the request not be filed. An order must be issued granting the request in whole
or in part if, from affidavits, sworn testimony, or other evidence, the court finds reasonable
grounds exist to believe that filing the warrant may cause the search or a related search to
be unsuccessful, create a substantial risk of injury to an innocent person, or severely hamper
an ongoing investigation.
new text end

new text begin (d) The search warrant must direct that following the commencement of any criminal
proceeding utilizing evidence obtained in or as a result of the search, the supporting
application or affidavit must be filed either immediately or at any other time as the court
directs. Until the filing, the documents and materials ordered withheld from filing must be
retained by the judge or the judge's designee.
new text end

new text begin Subd. 5. new text end

new text begin Reports. new text end

new text begin (a) At the same time as notice is provided according to the requirements
of subdivision 4, the issuing or denying judge shall report to the state court administrator:
new text end

new text begin (1) that a warrant was applied for under this section;
new text end

new text begin (2) whether the warrant was granted as applied for, was modified, or was denied;
new text end

new text begin (3) the period of collection of electronic communication information authorized by the
warrant, and the number and duration of any extensions of the warrant;
new text end

new text begin (4) the offense specified in the warrant or application or extension of a warrant; and
new text end

new text begin (5) the identity of the applying investigative or peace officer and agency making the
application and the person authorizing the application.
new text end

new text begin (b) On or before November 15 of each even-numbered year, the state court administrator
shall transmit to the legislature a report concerning: (1) all warrants authorizing the collection
of electronic communication information during the two previous calendar years; and (2)
all applications that were denied during the two previous calendar years. Each report shall
include a summary and analysis of the data required to be filed under this section. The report
is public and must be available for public inspection at the Legislative Reference Library
and the state court administrator's office and website.
new text end

new text begin (c) Nothing in this section prohibits or restricts a service provider from producing an
annual report summarizing the demands or requests it receives under this section.
new text end

Sec. 5.

new text begin [626.19] USE OF UNMANNED AERIAL VEHICLES.
new text end

new text begin Subdivision 1. new text end

new text begin Application; definitions. new text end

new text begin (a) This section applies to unmanned aerial
vehicle data collected, created, or maintained by a law enforcement agency and to law
enforcement agencies that maintain, use, or plan to use an unmanned aerial vehicle in
investigations, training, or in response to emergencies, incidents, and requests for service.
Unmanned aerial vehicle data collected, created, or maintained by a government entity is
classified under chapter 13.
new text end

new text begin (b) For purposes of this section, the following terms have the meanings given:
new text end

new text begin (1) "government entity" has the meaning given in section 13.02, subdivision 7a, except
that it does not include a law enforcement agency;
new text end

new text begin (2) "law enforcement agency" has the meaning given in section 626.84, subdivision 1;
new text end

new text begin (3) "unmanned aerial vehicle" or "UAV" means an aircraft that is operated without the
possibility of direct human intervention from within or on the aircraft; and
new text end

new text begin (4) "terrorist attack" means a crime that furthers terrorism as defined in section 609.714,
subdivision 1.
new text end

new text begin Subd. 2. new text end

new text begin Use of unmanned aerial vehicles limited. new text end

new text begin Except as provided in subdivision
3, a law enforcement agency must not use a UAV without a search warrant issued under
this chapter.
new text end

new text begin Subd. 3. new text end

new text begin Authorized use. new text end

new text begin A law enforcement agency may use a UAV:
new text end

new text begin (1) during or in the aftermath of an emergency situation that involves the risk of death
or bodily harm to a person;
new text end

new text begin (2) over a public event where there is a heightened risk to the safety of participants or
bystanders;
new text end

new text begin (3) to counter the risk of a terrorist attack by a specific individual or organization if the
agency determines that credible intelligence indicates a risk;
new text end

new text begin (4) to prevent the loss of life and property in natural or man-made disasters and to
facilitate operational planning, rescue, and recovery operations in the aftermath of these
disasters;
new text end

new text begin (5) to conduct a threat assessment in anticipation of a specific event;
new text end

new text begin (6) to collect information from a public area if there is reasonable suspicion of criminal
activity;
new text end

new text begin (7) to collect information for crash reconstruction purposes after a serious or deadly
collision occurring on a public road;
new text end

new text begin (8) over a public area for officer training or public relations purposes; and
new text end

new text begin (9) for purposes unrelated to law enforcement at the request of a government entity
provided that the government entity makes the request in writing to the law enforcement
agency and specifies the reason for the request and proposed period of use.
new text end

new text begin Subd. 4. new text end

new text begin Limitations on use. new text end

new text begin (a) A law enforcement agency using a UAV must comply
with all Federal Aviation Administration requirements and guidelines.
new text end

new text begin (b) A law enforcement agency must not deploy a UAV with facial recognition or other
biometric-matching technology unless expressly authorized by a warrant.
new text end

new text begin (c) A law enforcement agency must not equip a UAV with weapons.
new text end

new text begin (d) A law enforcement agency must not use a UAV to collect data on public protests or
demonstrations unless expressly authorized by a warrant or an exception applies under
subdivision 3.
new text end

new text begin Subd. 5. new text end

new text begin Documentation required. new text end

new text begin A law enforcement agency must document each
use of a UAV, connect each deployment to a unique case number, provide a factual basis
for the use of a UAV, and identify the applicable exception under subdivision 3 unless a
warrant was obtained.
new text end

new text begin Subd. 6. new text end

new text begin Data classification; retention. new text end

new text begin (a) Data collected by a UAV are private data
on individuals or nonpublic data, subject to the following:
new text end

new text begin (1) if the individual requests a copy of the recording, data on other individuals who do
not consent to its release must be redacted from the copy;
new text end

new text begin (2) UAV data may be disclosed as necessary in an emergency situation under subdivision
3, clause (1);
new text end

new text begin (3) UAV data may be disclosed to the government entity making a request for UAV use
under subdivision 3, clause (9);
new text end

new text begin (4) UAV data that are criminal investigative data are governed by section 13.82,
subdivision 7; and
new text end

new text begin (5) UAV data that are not public data under other provisions of chapter 13 retain that
classification.
new text end

new text begin (b) Section 13.04, subdivision 2, does not apply to data collected by a UAV.
new text end

new text begin (c) Notwithstanding section 138.17, a law enforcement agency must delete data collected
by a UAV as soon as possible, and in no event later than seven days after collection unless
the data is part of an active criminal investigation.
new text end

new text begin Subd. 7. new text end

new text begin Evidence. new text end

new text begin Information obtained or collected by a law enforcement agency in
violation of this section is not admissible as evidence in a criminal, administrative, or civil
proceeding against the data subject.
new text end

new text begin Subd. 8. new text end

new text begin Remedies. new text end

new text begin In addition to any other remedies provided by law, including remedies
available under chapter 13, an aggrieved party may bring a civil action against a law
enforcement agency to prevent or remedy a violation of this section.
new text end

new text begin Subd. 9. new text end

new text begin Public comment. new text end

new text begin A law enforcement agency must provide an opportunity for
public comment before it purchases or uses a UAV. At a minimum, the agency must accept
public comments submitted electronically or by mail. The governing body with jurisdiction
over the budget of a local law enforcement agency must provide an opportunity for public
comment at a regularly scheduled meeting.
new text end

new text begin Subd. 10. new text end

new text begin Written policies and procedures required. new text end

new text begin Prior to the operation of a UAV,
the chief officer of every state and local law enforcement agency that uses or proposes to
use a UAV must establish and enforce a written policy governing its use, including requests
for use from government entities. In developing and adopting the policy, the law enforcement
agency must provide for public comment and input as described in subdivision 9. The written
policy must be posted on the agency's website, if the agency has a website.
new text end

new text begin Subd. 11. new text end

new text begin Notice; disclosure of warrant. new text end

new text begin (a) Within a reasonable time but not later than
90 days after the court unseals a warrant under this subdivision, the issuing or denying judge
shall cause to be served on the persons named in the warrant and the application an inventory
that shall include notice of:
new text end

new text begin (1) the issuance of the warrant or application;
new text end

new text begin (2) the date of issuance and the period of authorized, approved, or disapproved collection
of information, or the denial of the application; and
new text end

new text begin (3) whether information was or was not collected during the period.
new text end

new text begin (b) A warrant authorizing collection of information with a UAV must direct that:
new text end

new text begin (1) the warrant be sealed for a period of 90 days or until the objective of the warrant has
been accomplished, whichever is shorter; and
new text end

new text begin (2) the warrant be filed with the court administrator within ten days of the expiration of
the warrant.
new text end

new text begin (c) The prosecutor may request that the warrant, supporting affidavits, and any order
granting the request not be filed. An order must be issued granting the request in whole or
in part if, from affidavits, sworn testimony, or other evidence, the court finds reasonable
grounds exist to believe that filing the warrant may cause the search or a related search to
be unsuccessful, create a substantial risk of injury to an innocent person, or severely hamper
an ongoing investigation.
new text end

new text begin (d) The warrant must direct that, following the commencement of any criminal proceeding
using evidence obtained in or as a result of the search, the supporting application or affidavit
must be filed either immediately or at any other time as the court directs. Until the filing,
the documents and materials ordered withheld from filing must be retained by the judge or
the judge's designee.
new text end

new text begin Subd. 12. new text end

new text begin Reporting. new text end

new text begin (a) By January 15 of each year, each law enforcement agency that
maintains or uses a UAV shall report to the commissioner of public safety the following
information for the preceding calendar year:
new text end

new text begin (1) the number of times a UAV was deployed without a search warrant issued under this
chapter, identifying the date of deployment and the authorized use of the UAV under
subdivision 3; and
new text end

new text begin (2) the total cost of the agency's UAV program.
new text end

new text begin (b) By June 15 of each year, the commissioner of public safety shall compile the reports
submitted to the commissioner under paragraph (a), organize the reports by law enforcement
agency, submit the compiled report to the chairs and ranking minority members of the senate
and house of representatives committees having jurisdiction over data practices and public
safety, and make the compiled report public on the department's website.
new text end

new text begin (c) By January 15 of each year, a judge who has issued or denied approval of a warrant
under this section that expired during the preceding year shall report to the state court
administrator:
new text end

new text begin (1) that a warrant or extension was applied for;
new text end

new text begin (2) the type of warrant or extension applied for;
new text end

new text begin (3) whether the warrant or extension was granted as applied for, modified, or denied;
new text end

new text begin (4) the period of UAV use authorized by the warrant and the number and duration of
any extensions of the warrant;
new text end

new text begin (5) the offense specified in the warrant or application or extension of a warrant; and
new text end

new text begin (6) the identity of the law enforcement agency making the application and the person
authorizing the application.
new text end

new text begin (d) By June 15 of each year, the state court administrator shall submit to the chairs and
ranking minority members of the senate and house of representatives committees or divisions
having jurisdiction over data practices and public safety and post on the supreme court's
website a full and complete report concerning the number of applications for warrants
authorizing or approving use of UAVs or disclosure of information from the use of UAVs
under this section and the number of warrants and extensions granted or denied under this
section during the preceding calendar year. The report must include a summary and analysis
of the data required to be filed with the state court administrator under paragraph (c).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2020, provided that the chief
law enforcement officers shall adopt the written policy required under subdivision 10 no
later than February 15, 2021.
new text end

Sec. 6.

Minnesota Statutes 2018, section 626A.08, subdivision 2, is amended to read:

Subd. 2.

Application and orders.

new text begin (a) new text end Applications made and warrants issued under this
chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever
the judge directs. Such applications and orders shall be disclosed only upon a showing of
good cause before a judge of the district court and shall not be destroyed except on order
of the issuing or denying judge, and in any event shall be kept for ten years.

new text begin (b) Notwithstanding paragraph (a), the filing, sealing, and reporting requirements for
applications made and warrants issued under this chapter that involve location information
of electronic devices, as defined in section 626A.42, are governed by section 626A.42,
subdivision 4. However, applications and warrants, or portions of applications and warrants,
that do not involve location information of electronic devices continue to be governed by
paragraph (a).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7.

Minnesota Statutes 2018, section 626A.26, subdivision 3, is amended to read:

Subd. 3.

Exceptions.

Subdivision 1 does not apply with respect to conduct authorized:

(1) by the person or entity providing a wire or electronic communications service;

(2) by a user of that service with respect to a communication of or intended for that user;
or

(3) in sections new text begin 626.085, new text end 626A.05 to 626A.09, new text begin or new text end 626A.28 deleted text begin , or 626A.29 deleted text end .

Sec. 8.

Minnesota Statutes 2018, section 626A.27, subdivision 2, is amended to read:

Subd. 2.

Exceptions.

A person or entity may divulge the contents of a communication:

(1) to an addressee or intended recipient of the communication or an agent of the
addressee or intended recipient;

(2) as otherwise authorized in section new text begin 626.085; new text end 626A.02, subdivision 2, paragraph (a);
626A.05; or section 626A.28;

(3) with the lawful consent of the originator or an addressee or intended recipient of the
communication, or the subscriber in the case of remote computing service;

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

(5) as may be necessarily incident to the rendition of the service or to the protection of
the rights or property of the provider of that service; or

(6) to a law enforcement agency, if the contents:

(i) were inadvertently obtained by the service provider; and

(ii) appear to pertain to the commission of a crime.

Sec. 9.

Minnesota Statutes 2018, section 626A.28, subdivision 3, is amended to read:

Subd. 3.

Records concerning electronic communication service or remote computing
service.

(a) Except as provided in paragraph (b) or chapter 325M, a provider of electronic
communication service or remote computing service may disclose a record or other
information pertaining to a subscriber to or customer of the service, not including the contents
of communications deleted text begin covered by subdivision 1 or 2 deleted text end , to any person other than a governmental
entity.

(b) A provider of electronic communication service or remote computing service may
disclose a record or other information pertaining to a subscriber to or customer of the service,
not including the contents of communications deleted text begin covered by subdivision 1 or 2, deleted text end to a
governmental entity only when the governmental entity:

(1) uses an administrative subpoena authorized by statute, or a grand jury subpoena;

(2) obtains a warrant;

(3) obtains a court order for such disclosure under subdivision 4; or

(4) has the consent of the subscriber or customer to the disclosure.

(c) A governmental entity receiving records or information under this subdivision is not
required to provide notice to a subscriber or customer.

(d) Notwithstanding paragraph (b), a provider of electronic communication service or
remote computing service may not disclose location information covered by section 626A.42
to a government entity except as provided in that section.

Sec. 10.

Minnesota Statutes 2018, section 626A.28, subdivision 4, is amended to read:

Subd. 4.

Requirements for court order.

A court order for disclosure under subdivision
deleted text begin 2 or deleted text end 3 must issue only if the governmental entity shows that there is reason to believe the
deleted text begin contents of a wire or electronic communication, or the deleted text end records or other information sought,
are relevant to a legitimate law enforcement inquiry. A court issuing an order pursuant to
this section, on a motion made promptly by the service provider, may quash or modify such
order, if the information or records requested are unusually voluminous in nature or
compliance with such order otherwise would cause an undue burden on such provider.

Sec. 11.

Minnesota Statutes 2018, section 626A.28, subdivision 5, is amended to read:

Subd. 5.

No cause of action against a provider disclosing certain information.

No
cause of action lies in any court against any provider of wire or electronic communication
service, its officers, employees, agents, or other specified persons for providing information,
facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or
certification under deleted text begin sections deleted text end new text begin section 626.085 or new text end 626A.26 to 626A.34.

Sec. 12.

Minnesota Statutes 2018, section 626A.31, subdivision 1, is amended to read:

Subdivision 1.

Payment.

Except as otherwise provided in subdivision 3, a governmental
entity obtaining deleted text begin the contents of communications, deleted text end records deleted text begin , deleted text end or other information under deleted text begin sections deleted text end new text begin
section new text end 626A.27 deleted text begin , deleted text end new text begin or new text end 626A.28 deleted text begin , and 626A.29 deleted text end shall pay to the person or entity assembling or
providing the information a fee for reimbursement for costs that are reasonably necessary
and that have been directly incurred in searching for, assembling, reproducing, or otherwise
providing the information. The reimbursable costs must include any costs due to necessary
disruption of normal operations of the electronic communication service or remote computing
service in which the information may be stored.

Sec. 13.

Minnesota Statutes 2018, section 626A.37, subdivision 4, is amended to read:

Subd. 4.

Nondisclosure of existence of pen register, trap and trace device, or mobile
tracking device.

new text begin (a) new text end An order authorizing or approving the installation and use of a pen
register, trap and trace device, or a mobile tracking device must direct that:

(1) the order be sealed until otherwise ordered by the court; and

(2) the person owning or leasing the line to which the pen register or a trap and trace
device is attached, or who has been ordered by the court to provide assistance to the applicant,
not disclose the existence of the pen register, trap and trace device, mobile tracking device,
or the existence of the investigation to the listed subscriber, or to any other person, unless
or until otherwise ordered by the court.

new text begin (b) Paragraph (a) does not apply to an order that involves location information of
electronic devices, as defined in section 626A.42. Instead, the filing, sealing, and reporting
requirements for those orders are governed by section 626A.42, subdivision 4. However,
any portion of an order that does not involve location information of electronic devices
continues to be governed by paragraph (a).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 14.

Minnesota Statutes 2018, section 626A.42, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

(a) The definitions in this subdivision apply to this section.

(b) "Electronic communication service" has the meaning given in section 626A.01,
subdivision 17.

(c) "Electronic device" means a device that enables access to or use of an electronic
communication service, remote computing service, or location information service.

(d) "Government entity" means a state or local agency, including but not limited to a
law enforcement entity or any other investigative entity, agency, department, division,
bureau, board, or commission or an individual acting or purporting to act for or on behalf
of a state or local agency.

(e) "Location information" means information concerning the location of an electronic
device new text begin or unique identifier new text end that, in whole or in part, is generated or derived from or obtained
by the operation of an electronic device new text begin or unique identifier new text end .

(f) "Location information service" means the provision of a global positioning service
or other mapping, locational, or directional information service.

(g) "Remote computing service" has the meaning given in section 626A.34.

(h) "Tracking warrant" means an order in writing, in the name of the state, signed by a
court other than a court exercising probate jurisdiction, directed to a peace officer, granting
the officer access to location information of an electronic device new text begin or unique identifier new text end .

new text begin (i) "Unique identifier" means any numeric or alphanumeric string that is associated with
a single entity or account within a given electronic communication application or service.
new text end

Sec. 15.

Minnesota Statutes 2018, section 626A.42, subdivision 2, is amended to read:

Subd. 2.

Tracking warrant required for location information.

(a) Except as provided
in paragraph (b), a government entity may not obtain the location information of an electronic
device new text begin or unique identifier new text end without a tracking warrant. A warrant granting access to location
information must be issued only if the government entity shows that there is probable cause
the person who possesses an electronic device new text begin or is using a unique identifier new text end is committing,
has committed, or is about to commit a crime. An application for a warrant must be made
in writing and include:

(1) the identity of the government entity's peace officer making the application, and the
officer authorizing the application; and

(2) a full and complete statement of the facts and circumstances relied on by the applicant
to justify the applicant's belief that a warrant should be issued, including (i) details as to the
particular offense that has been, is being, or is about to be committed, and (ii) the identity
of the person, if known, committing the offense whose location information is to be obtained.

(b) A government entity may obtain location information without a tracking warrant:

(1) when the electronic device is reported lost or stolen by the owner;

(2) in order to respond to the user's call new text begin or request new text end for emergency services;

(3) with the informed, affirmative, documented consent of the owner or user of the
electronic device new text begin or unique identifier new text end ;

(4) with the informed, affirmative consent of the legal guardian or next of kin of the
owner or user if the owner or user is believed to be deceased or reported missing and unable
to be contacted; or

(5) in an emergency situation that involves the risk of death or serious physical harm to
a person who possesses an electronic communications device pursuant to sections 237.82
and 237.83 new text begin or is using a unique identifier new text end .

Sec. 16.

Minnesota Statutes 2018, section 626A.42, subdivision 3, is amended to read:

Subd. 3.

Time period and extensions.

(a) A tracking warrant issued under this section
must authorize the collection of location information for a period not to exceed 60 days, or
the period of time necessary to achieve the objective of the authorization, whichever is less.

(b) Extensions of a tracking warrant may be granted, but only upon an application for
an order and upon the judicial finding required by subdivision 2, paragraph (a). The period
of extension must be for a period not to exceed 60 days, or the period of time necessary to
achieve the objective for which it is granted, whichever is less.

(c) Paragraphs (a) and (b) apply only to tracking warrants issued for the contemporaneous
collection of electronic device new text begin or unique identifier new text end location information.

Sec. 17.

Minnesota Statutes 2018, section 626A.42, subdivision 5, is amended to read:

Subd. 5.

Report concerning collection of location information.

(a) At the same time
as notice is provided under subdivision 4, the issuing or denying judge shall report to the
state court administrator:

(1) the fact that a tracking warrant or extension was applied for;

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

(3) the period of collection authorized by the warrant, and the number and duration of
any extensions of the warrant;

(4) the offense specified in the warrant or application, or extension of a warrant;

(5) whether the collection required contemporaneous monitoring of an electronic device's
new text begin or unique identifier's new text end location; and

(6) the identity of the applying investigative or peace officer and agency making the
application and the person authorizing the application.

(b) On or before November 15 of each even-numbered year, the state court administrator
shall transmit to the legislature a report concerning: (1) all tracking warrants authorizing
the collection of location information during the two previous calendar years; and (2) all
applications that were denied during the two previous calendar years. Each report shall
include a summary and analysis of the data required to be filed under this subdivision. The
report is public and must be available for public inspection at the Legislative Reference
Library and the state court administrator's office and website.

Sec. 18. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2018, sections 626A.28, subdivisions 1 and 2; 626A.29; and 626A.30, new text end new text begin
are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: S3072-1

626A.28 REQUIREMENTS FOR GOVERNMENTAL ACCESS.

Subdivision 1.

Contents of electronic communications in electronic storage.

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication that is in electronic storage in an electronic communications system for 180 days or less only under a warrant. A government entity may require the disclosure by a provider of electronic communications services of the contents of an electronic communication that has been in electronic storage in an electronic communications system for more than 180 days by the means available under subdivision 2.

Subd. 2.

Contents of electronic communications in a remote computing service.

(a) A governmental entity may require a provider of remote computing service to disclose the contents of electronic communication to which this paragraph is made applicable by paragraph (b):

(1) without required notice to the subscriber or customer, if the governmental entity obtains a warrant; or

(2) with prior notice if the governmental entity:

(i) uses an administrative subpoena authorized by statute or a grand jury subpoena; or

(ii) obtains a court order for such disclosure under subdivision 4;

except that delayed notice may be given under section 626A.30.

(b) Paragraph (a) is applicable with respect to any electronic communication that is held or maintained on that service:

(1) on behalf of, and received by means of electronic transmission from, or created by means of computer processing of communications received by means of electronic transmission from, a subscriber or customer of such remote computing service; and

(2) solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of any communications for purposes of providing any services other than storage or computer processing.

626A.29 BACKUP PRESERVATION.

Subdivision 1.

Backup copy.

(a) A governmental entity acting under section 626A.28, subdivision 2, paragraph (b), may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of the subpoena or court order, the service provider shall create a backup copy, as soon as practicable, consistent with its regular business practices and shall confirm to the governmental entity that the backup copy has been made. The backup copy must be created within two business days after receipt by the service provider of the subpoena or court order.

(b) Notice to the subscriber or customer must be made by the governmental entity within three days after receipt of the confirmation, unless notice is delayed under section 626A.30, subdivision 1.

(c) The service provider must not destroy a backup copy until the later of:

(1) the delivery of the information; or

(2) the resolution of any proceedings, including appeals of any proceeding, concerning the subpoena or court order.

(d) The service provider shall release the backup copy to the requesting governmental entity no sooner than 14 days after the governmental entity's notice to the subscriber or customer if the service provider:

(1) has not received notice from the subscriber or customer that the subscriber or customer has challenged the governmental entity's request; and

(2) has not initiated proceedings to challenge the request of the governmental entity.

(e) A governmental entity may seek to require the creation of a backup copy under paragraph (a) if in its sole discretion the entity determines that there is reason to believe that notification under section 626A.28 of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber or customer or service provider.

Subd. 2.

Customer challenges.

(a) Within 14 days after notice by the governmental entity to the subscriber or customer under subdivision 1, paragraph (b), the subscriber or customer may file a motion to quash the subpoena or vacate the court order, with copies served upon the governmental entity and with written notice of the challenge to the service provider. A motion to vacate a court order must be filed in the court which issued the order. A motion to quash a subpoena must be filed in the district court of the county in which the governmental entity issuing the subpoena is located. The motion or application must contain an affidavit or sworn statement:

(1) stating that the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for the applicant have been sought; and

(2) stating the applicant's reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this chapter in some other respect.

(b) Service must be made under this section upon a governmental entity by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received under sections 626A.26 to 626A.34. For the purposes of this section, the term "delivery" means handing it to the person specified in the notice or handing it to the person in charge of the office or department specified in the notice or the designee of the person in charge.

(c) If the court finds that the customer has complied with paragraphs (a) and (b), the court shall order the governmental entity to file a sworn response. The response may be filed in camera if the governmental entity includes in its response the reasons that make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties' initial allegations and response, the court may conduct additional proceedings as it considers appropriate. Proceedings must be completed and the motion or application decided as soon as practicable after the filing of the governmental entity's response.

(d) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order the process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained, and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of sections 626A.26 to 626A.34, it shall order the process quashed.

(e) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer.

626A.30 DELAYED NOTICE.

Subdivision 1.

Delay of notification.

(a) A governmental entity acting under section 626A.28, subdivision 2, may:

(1) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 626A.28, subdivision 2, for a period not to exceed 90 days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (b); or

(2) where an administrative subpoena or a grand jury subpoena is obtained, delay the notification required under section 626A.28 for a period not to exceed 90 days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (b).

(b) An adverse result for the purposes of paragraph (a) is:

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(c) The governmental entity shall maintain a true copy of certification under paragraph (a), clause (2).

(d) Extensions of the delay of notification provided in section 626A.28 of up to 90 days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subdivision 2.

(e) Upon expiration of the period of delay of notification under paragraph (a) or (d), the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that:

(1) states with reasonable specificity the nature of the law enforcement inquiry; and

(2) informs the customer or subscriber:

(i) that information maintained for the customer or subscriber by the service provider named in the process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;

(ii) that notification of the customer or subscriber was delayed;

(iii) what governmental entity or court made the certification or determination under which that delay was made; and

(iv) which provision of sections 626A.26 to 626A.34 allowed such delay.

(f) As used in this subdivision, the term "supervisory official" means a peace officer with the rank of sergeant, or its equivalent, or above, a special agent in charge from the Bureau of Criminal Apprehension, the attorney general, the head of the attorney general's criminal division, a county attorney, or the head of a county attorney's criminal division.

Subd. 2.

Preclusion of notice to subject of governmental access.

A governmental entity acting under section 626A.28 when it is not required to notify the subscriber or customer under section 626A.28, subdivision 2, paragraph (a), or to the extent that it may delay notice under subdivision 1, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for a period as the court considers appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in:

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.