HF 1197

as introduced - 91st Legislature (2019 - 2020) Posted on 02/18/2019 03:44pm

A bill for an act
relating to data privacy; prohibiting access by a government entity to electronic
communication held by a service provider or other third party unless certain
procedures are followed; providing certain limits on data retention; providing
remedies; requiring a report; proposing coding for new law in Minnesota Statutes,
chapter 626A.

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

Section 1. new text begin SHORT TITLE.
new text end

new text begin Minnesota Statutes, sections 626A.45 to 626A.49, may be cited as the "Minnesota
Electronic Communications Privacy Act."
new text end

Sec. 2.

new text begin [626A.45] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For purposes of sections 626A.45 to 626A.49, the definitions in
this section have the meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Adverse result. new text end

new text begin "Adverse result" means any of the following:
new text end

new text begin (1) danger to the life or physical safety of an individual;
new text end

new text begin (2) flight from prosecution;
new text end

new text begin (3) destruction of or tampering with evidence;
new text end

new text begin (4) intimidation of potential witnesses; or
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new text begin (5) serious jeopardy to an investigation.
new text end

new text begin Subd. 3. new text end

new text begin Authorized possessor. new text end

new text begin "Authorized possessor" means the person in possession
of an electronic device when that person is the owner of the device or has been authorized
to possess the device by the owner of the device.
new text end

new text begin Subd. 4. new text end

new text begin Electronic communication. new text end

new text begin "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 Subd. 5. new text end

new text begin Electronic communication information. new text end

new text begin "Electronic communication
information" means any information about an electronic communication or the use of an
electronic communication service, including but not limited to the contents; sender; recipients;
format; precise or approximate location of the sender or recipients at any point during the
communication; time or date the communication was created, sent, or received; or any
information pertaining to any individual or device participating in the communication,
including, but not limited to, an IP address. Electronic communication information does
not include subscriber information under subdivision 13.
new text end

new text begin Subd. 6. new text end

new text begin Electronic communication service. new text end

new text begin "Electronic communication service" has
the meaning given in section 626A.42, subdivision 1, paragraph (b).
new text end

new text begin Subd. 7. new text end

new text begin Electronic device. new text end

new text begin "Electronic device" has the meaning given in section
626A.42, subdivision 1, paragraph (c).
new text end

new text begin Subd. 8. new text end

new text begin Electronic device information. new text end

new text begin "Electronic device information" means any
information stored on or generated through the operation of an electronic device, including
the current and prior locations of the device.
new text end

new text begin Subd. 9. new text end

new text begin Electronic information. new text end

new text begin "Electronic information" means electronic
communication information or electronic device information.
new text end

new text begin Subd. 10. new text end

new text begin Government entity. new text end

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

new text begin Subd. 11. new text end

new text begin Service provider. new text end

new text begin "Service provider" means a person or entity offering an
electronic communication service.
new text end

new text begin Subd. 12. new text end

new text begin Specific consent. new text end

new text begin "Specific consent" means consent provided directly to the
government entity seeking information, including, but not limited to, when the government
entity is the addressee or intended recipient or a member of the intended audience of an
electronic communication. Specific consent does not require that the originator of the
communication have actual knowledge that an addressee, intended recipient, or member of
the specific audience is a government entity, except where a government employee or agent
has taken deliberate steps to hide the employee's or agent's government association.
new text end

new text begin Subd. 13. new text end

new text begin Subscriber information. new text end

new text begin "Subscriber information" means the name, street
address, telephone number, e-mail address, or similar contact information provided by the
subscriber to the provider to establish or maintain an account or communication channel,
a subscriber or account number or identifier, the length of service, and the types of services
used by a user of or subscriber to a service provider.
new text end

Sec. 3.

new text begin [626A.46] GOVERNMENT ENTITY PROHIBITIONS; EXCEPTIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Prohibitions. new text end

new text begin Except as provided in this section, a government entity
shall not:
new text end

new text begin (1) compel or incentivize the production of or access to electronic communication
information from a service provider;
new text end

new text begin (2) compel the production of or access to electronic device information from any person
or entity other than the authorized possessor of the device; or
new text end

new text begin (3) access electronic device information by means of physical interaction or electronic
communication with the electronic device.
new text end

new text begin Subd. 2. new text end

new text begin Exceptions. new text end

new text begin A government entity may:
new text end

new text begin (1) compel the production of or access to electronic communication information from
a service provider, or compel the production of or access to electronic device information
from any person or entity other than the authorized possessor of the device only:
new text end

new text begin (i) pursuant to a search warrant issued under section 626.18 and subject to subdivision
4; or
new text end

new text begin (ii) pursuant to a wiretap order issued under sections 626A.05 and 626A.06; and
new text end

new text begin (2) access electronic device information by means of physical interaction or electronic
communication with the device only:
new text end

new text begin (i) pursuant to a search warrant issued pursuant to section 626.18 and subject to
subdivision 4;
new text end

new text begin (ii) pursuant to a wiretap order issued pursuant to sections 626A.05 and 626A.06;
new text end

new text begin (iii) with the specific consent of the authorized possessor of the device;
new text end

new text begin (iv) with the specific consent of the owner of the device, only when the device has been
reported as lost or stolen; or
new text end

new text begin (v) if the government entity, in good faith, believes the device to be lost, stolen, or
abandoned, provided that the entity shall only access electronic device information in order
to attempt to identify, verify, or contact the owner or authorized possessor of the device.
new text end

new text begin Subd. 3. new text end

new text begin Warrant. new text end

new text begin (a) A warrant for electronic communication information shall:
new text end

new text begin (1) describe with particularity the information to be seized by specifying the time periods
covered and, as appropriate and reasonable, the target individuals or accounts, the applications
or services covered, and the types of information sought;
new text end

new text begin (2) require that any information obtained through the execution of the warrant that is
unrelated to the objective of the warrant be destroyed within 30 days and not subject to
further review, use, or disclosure. This clause shall not apply when the information obtained
is exculpatory with respect to the targeted individual; and
new text end

new text begin (3) comply with all other provisions of Minnesota and federal law, including any
provisions prohibiting, limiting, or imposing additional requirements on the use of search
warrants.
new text end

new text begin (b) When issuing any warrant or order for electronic information, or upon the petition
from the target or recipient of the warrant or order, a court may, at its discretion, appoint a
special master charged with ensuring that only information necessary to achieve the objective
of the warrant or order is produced or accessed.
new text end

new text begin Subd. 4. new text end

new text begin Service provider; voluntary disclosure. new text end

new text begin (a) A service provider may voluntarily
disclose electronic communication information or subscriber information when that disclosure
is not otherwise prohibited by state or federal law.
new text end

new text begin (b) If a government entity receives electronic communication information voluntarily
provided under subdivision 7, the government entity shall destroy that information within
90 days unless one or more of the following apply:
new text end

new text begin (1) the entity has or obtains the specific consent of the sender or recipient of the electronic
communications about which information was disclosed; or
new text end

new text begin (2) the entity obtains a court order authorizing the retention of the information.
new text end

new text begin (c) A court shall issue a retention order upon a finding that the conditions justifying the
initial voluntary disclosure persist and the court shall authorize the retention of the
information only for so long as those conditions persist, or there is probable cause to believe
that the information constitutes evidence that a crime has been committed. Information
retained subject to this provision shall not be shared with:
new text end

new text begin (1) any persons or entities that do not agree to limit their use of the provided information
to those purposes contained in the court authorization; and
new text end

new text begin (2) any persons or entities that:
new text end

new text begin (i) are not legally obligated to destroy the provided information upon the expiration or
rescindment of the court's retention order; or
new text end

new text begin (ii) do not voluntarily agree to destroy the provided information upon the expiration or
rescindment of the court's retention order.
new text end

new text begin Subd. 5. new text end

new text begin Emergency. new text end

new text begin If a government entity obtains electronic communication
information relating to an emergency involving danger of death or serious physical injury
to a person, that requires access to the electronic information without delay, the entity shall,
within three days after obtaining the electronic information, file with the appropriate court
an application for a warrant or order authorizing obtaining the electronic information or a
motion seeking approval of the emergency disclosures that shall set forth the facts giving
rise to the emergency and, if applicable, a request supported by a sworn affidavit for an
order delaying notification under section 626A.47, subdivision 2, paragraph (a). The court
shall promptly rule on the application or motion and shall order the immediate destruction
of all information obtained, and immediate notification under section 626A.47, subdivision
1, if the notice has not already been given, upon a finding that the facts did not give rise to
an emergency or upon rejecting the warrant or order application on any other ground.
new text end

new text begin Subd. 6. new text end

new text begin Subpoena. new text end

new text begin This section does not limit the authority of a government entity to
use an administrative, grand jury, trial, or civil discovery subpoena to require:
new text end

new text begin (1) an originator, addressee, or intended recipient of an electronic communication to
disclose any electronic communication information associated with that communication;
new text end

new text begin (2) an entity that provides electronic communications services to its officers, directors,
employees, or agents for the purpose of carrying out their duties, to disclose electronic
communication information associated with an electronic communication to or from an
officer, director, employee, or agent of the entity; or
new text end

new text begin (3) a service provider to provide subscriber information.
new text end

new text begin Subd. 7. new text end

new text begin Recipient voluntary disclosure. new text end

new text begin This section does not prohibit the intended
recipient of an electronic communication from voluntarily disclosing electronic
communication information concerning that communication to a government entity.
new text end

new text begin Subd. 8. new text end

new text begin Construction. new text end

new text begin Nothing in this section shall be construed to expand any authority
under Minnesota law to compel the production of or access to electronic information.
new text end

Sec. 4.

new text begin [626A.47] NOTICES REQUIRED.
new text end

new text begin Subdivision 1. new text end

new text begin Notice. new text end

new text begin Except as otherwise provided in this section, a government entity
that executes a warrant, or obtains electronic communication information in an emergency
under section 626A.46, subdivision 5, shall serve upon, or deliver to by registered or first
class mail, electronic mail, or other means reasonably calculated to be effective, the identified
targets of the warrant or emergency request, a notice that informs the recipient that
information about the recipient has been compelled or requested, and states with reasonable
specificity the nature of the government investigation under which the information is sought.
The notice shall include a copy of the warrant or a written statement setting forth facts
giving rise to the emergency. The notice shall be provided contemporaneously with the
execution of a warrant, or, in the case of an emergency, within three days after obtaining
the electronic information.
new text end

new text begin Subd. 2. new text end

new text begin Emergency; delay of notice. new text end

new text begin (a) When a warrant is sought or electronic
communication information is obtained in an emergency under section 626A.46, subdivision
5, the government entity may submit a request supported by a sworn affidavit for an order
delaying notification and prohibiting any party providing information from notifying any
other party that information has been sought. The court shall issue the order if the court
determines that there is reason to believe that notification may have an adverse result, but
only for the period of time that the court finds there is reason to believe that the notification
may have that adverse result, and not to exceed 90 days. The court may grant extensions of
the delay of up to 90 days each.
new text end

new text begin (b) Upon expiration of the period of delay of the notification, the government entity
shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other
means reasonably calculated to be effective as specified by the court issuing the order
authorizing delayed notification, the identified targets of the warrant, a document that
includes the information described in subdivision 1, a copy of all electronic information
obtained or a summary of that information, including, at a minimum, the number and types
of records disclosed, the date and time when the earliest and latest records were created,
and a statement of the grounds for the court's determination to grant a delay in notifying
the individual.
new text end

new text begin Subd. 3. new text end

new text begin No identified target. new text end

new text begin (a) If there is no identified target of a warrant or emergency
request at the time of issuance, the government entity shall submit to the supreme court all
of the information required in subdivision 1 within three days of the execution of the warrant
or issuance of the request. If an order delaying notice is obtained under subdivision 2, the
government entity shall submit to the supreme court all of the information required in
subdivision 2, paragraph (b), upon the expiration of the period of delay of the notification.
new text end

new text begin (b) The supreme court shall publish the reports on its website within 90 days of receipt.
The supreme court shall redact names or other personal identifying information from the
reports.
new text end

new text begin Subd. 4. new text end

new text begin Service provider. new text end

new text begin Except as otherwise provided in this section, nothing in
sections 626A.45 to 626A.49 shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for electronic information.
new text end

Sec. 5.

new text begin [626A.48] REMEDIES.
new text end

new text begin Subdivision 1. new text end

new text begin Suppression. new text end

new text begin Any person in a trial, hearing, or proceeding may move to
suppress any electronic communication information obtained or retained in violation of the
United States Constitution, Minnesota Constitution, or of sections 626A.45 to 626A.49.
The motion shall be made, determined, and subject to review according to section 626.21
or 626A.12.
new text end

new text begin Subd. 2. new text end

new text begin Attorney general. new text end

new text begin The attorney general may commence a civil action to compel
any government entity to comply with the provisions of sections 626A.45 to 626A.49.
new text end

new text begin Subd. 3. new text end

new text begin Petition. new text end

new text begin An individual whose information is targeted by a warrant, order, or
other legal process that is inconsistent with sections 626A.45 to 626A.49, the Minnesota
Constitution, the United States Constitution, or a service provider or any other recipient of
the warrant, order, or other legal process, may petition the issuing court to void or modify
the warrant, order, or process, or to order the destruction of any information obtained in
violation of sections 626A.45 to 626A.49, the Minnesota Constitution, or the United States
Constitution.
new text end

new text begin Subd. 4. new text end

new text begin No cause of action. new text end

new text begin A Minnesota or foreign corporation, and its officers,
employees, and agents, are not subject to any cause of action for providing records,
information, facilities, or assistance according to the terms of a warrant, court order, statutory
authorization, emergency certification, or wiretap order issued under sections 626A.45 to
626A.49.
new text end

Sec. 6.

new text begin [626A.49] REPORTS.
new text end

new text begin (a) At the same time as notice is provided under section 626A.47, the issuing or denying
judge shall report to the state court administrator:
new text end

new text begin (1) the fact that a warrant or extension was applied for under section 626A.46;
new text end

new text begin (2) the fact that the warrant or extension 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;
new text end

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

new text begin (6) 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 sections 626A.45 to 626A.49 shall prohibit or restrict a service provider
from producing an annual report summarizing the demands or requests it receives under
those sections.
new text end