HF 2288

as introduced - 88th Legislature (2013 - 2014) Posted on 02/25/2014 02:00pm

A bill for an act
relating to public safety; requiring law enforcement to secure a search warrant in
order to receive cell phone tracking data; amending Minnesota Statutes 2012,
section 626A.28, subdivision 3; proposing coding for new law in Minnesota
Statutes, chapter 626A.

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

Section 1.

Minnesota Statutes 2012, 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 covered by subdivision 1 or 2, to any person other than a
governmental entity.

(b) Except as provided in section 626A.42, 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
covered by subdivision 1 or 2, 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.

Sec. 2.

[626A.42] ELECTRONIC DEVICE LOCATION INFORMATION.

Subdivision 1.

Definitions.

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

(b) An "adverse result" occurs when notification of the existence of a search warrant
results in:

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

(2) a flight from prosecution;

(3) the destruction of or tampering with evidence;

(4) the intimidation of potential witnesses; or

(5) serious jeopardy to an investigation or undue delay of a trial.

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

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

(e) "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.

(f) "Location information" means information concerning the location of an
electronic device that, in whole or in part, is generated or derived from or obtained by the
operation of an electronic device.

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

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

Subd. 2.

Search 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 without a search warrant issued pursuant to chapter 626. A warrant
granting access to location information must be issued only if the government entity
shows that there is probable cause to believe that the person who possesses an electronic
device is committing, has committed, or is about to commit a felony level offense.

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

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

(2) in order to respond to the user's call for emergency services;

(3) with the informed, affirmative consent of the owner or user of the electronic
device;

(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.

Subd. 3.

Time period and extensions.

(a) A search 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 warrant may be granted, but only upon an application for an
order and upon the judicial finding required by subdivision 2. 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 search warrants issued for the
contemporaneous collection of electronic device location information.

Subd. 4.

Notice.

(a) Notice must be given to the owner or user of an electronic
device whose location information was obtained by a government entity.

(b) Unless delayed notice is ordered under paragraph (c), the government entity
shall provide notice to the owner or user that location information was obtained by the
government entity from the owner's or user's electronic device within three days of
obtaining the location information. The notice must be made by service or delivered
by registered or first-class mail, e-mail, or any other means reasonably calculated to be
effective as specified by the court issuing the warrant. The notice must contain the
following information:

(1) the nature of the government entity inquiry, with reasonable specificity;

(2) the location information of the owner or user that was obtained by, supplied to,
or requested by the government entity and the date on which it was obtained, provided,
or requested;

(3) if location information was obtained from a provider of electronic communication
service or other third party, the identity of the provider of electronic communication
service or the third party from whom the information was obtained; and

(4) whether the notification was delayed pursuant to paragraph (c) and, if so, the
court that granted the delay and the reasons for granting the delay.

(c) A government entity may include in the application for a warrant a request
for an order to delay the notification required under this subdivision for a period not to
exceed ten days. The court shall issue the order if the court determines that there is reason
to believe that notification may have an adverse result. Upon expiration of the period of
delay granted under this subdivision and any extension granted under paragraph (e), the
government entity shall provide the owner or user a copy of the warrant together with a
notice pursuant to paragraph (b).

(d) A government entity may include in its application for a warrant a request for
an order directing a provider of electronic communication service to which a warrant is
directed not to notify any other person of the existence of the warrant for a period of not
more than ten days. The court shall issue the order if the court determines that there is
reason to believe that notification of the existence of the warrant may have an adverse result.

(e) The court, upon application, may grant one or more extensions of orders granted
under paragraph (c) or (d) for up to an additional ten days.

Subd. 5.

Reporting.

(a) Unless disclosure of information pertaining to a particular
request or set of requests is specifically prohibited by law, an electronic communication
service shall prepare a report including all of the following information, to the extent
it can be reasonably determined:

(1) the number of warrants for location information, the number of requests made
with the informed consent of the owner or user of an electronic device, and the number of
emergency requests received by the electronic communication service from January 1 to
December 31, inclusive, of the previous year;

(2) the total number of disclosures made by the electronic communication service
pursuant to this section from January 1 to December 31, inclusive, of the previous year; and

(3) for each category of demand or disclosure, the electronic communication service
shall include all of the following information:

(i) the number of times location information has been disclosed by the electronic
communication service;

(ii) the number of times no location information has been disclosed by the electronic
communication service;

(iii) the number of times the electronic communication service contests the demand;
and

(iv) the number of users whose location information was disclosed by the electronic
communication service.

(b) Electronic communication services required to complete reports under this
subdivision shall submit the reports to the commissioner of public safety on or before
February 1 of each year. The commissioner shall make the reports publicly available on
the department's Web site, in a searchable format, on or before April 1 of each year.