HF 2553

as introduced - 88th Legislature (2013 - 2014) Posted on 03/12/2014 12:43pm

A bill for an act
relating to public safety; requiring law enforcement to secure a search warrant
in order to receive electronic device location information; 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, new text begin or location information
covered by section 626A.42, new 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 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.

new text begin [626A.42] ELECTRONIC DEVICE LOCATION INFORMATION.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) The definitions in this subdivision apply to this
section.
new text end

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

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

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

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

new text begin (4) the intimidation of potential witnesses; or
new text end

new text begin (5) serious jeopardy to an investigation or undue delay of a trial.
new text end

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

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

new text begin (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.
new text end

new text begin (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.
new text end

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

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

new text begin Subd. 2. new text end

new text begin Search warrant required for location information. new text end

new text begin (a) Except as
provided in paragraph (b), a government entity may not obtain the location information
of an electronic device without a search warrant. A search warrant granting access to
location information must be issued only if the government entity shows that there is
probable cause that the person who possesses an electronic device is committing, has
committed, or is about to commit a felony-level offense.
new text end

new text begin (b) A government entity may obtain location information without a search warrant:
new text end

new text begin (1) when the electronic device is reported lost or stolen by the owner;
new text end

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

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

new text begin (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
new text end

new text begin (5) when an emergency involving immediate danger of death or serious physical
injury to any person requires obtaining information relating to the emergency without
delay, and the search is narrowly tailored to address the emergency.
new text end

new text begin (c) A government entity exercising the warrantless emergency search authority under
paragraph (b), clause (5), must document the basis for determining that an emergency
involving immediate danger of death or serious physical injury to a person requires
obtaining, without delay, location information relating to the emergency and, not later
than 48 hours after the date on which the government entity obtains access to location
information, the government entity shall file with the appropriate court a signed, sworn
statement of a supervisory official setting forth the grounds for the emergency access.
new text end

new text begin Subd. 3. new text end

new text begin Notice. new text end

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

new text begin (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 that 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:
new text end

new text begin (1) the nature of the law enforcement inquiry, with reasonable specificity;
new text end

new text begin (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;
new text end

new text begin (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
new text end

new text begin (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.
new text end

new text begin (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).
new text end

new text begin (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.
new text end

new text begin (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.
new text end

new text begin Subd. 4. new text end

new text begin Reporting requirements. new text end

new text begin (a) By January 31 of each calendar year, any
judge issuing or denying a warrant or receiving a report of emergency access to location
information under subdivision 2 during the preceding calendar year shall report on each
warrant or notice of emergency access to the state court administrator:
new text end

new text begin (1) the date the warrant was applied for or the notice was received;
new text end

new text begin (2) the agency making the application or notice;
new text end

new text begin (3) the offense, if any, specified in the warrant application, warrant, or notice;
new text end

new text begin (4) the nature of the facilities from which, the place where, or the technique by
which location information was to be obtained;
new text end

new text begin (5) the expected number of devices about which location information was obtained;
new text end

new text begin (6) whether the warrant was granted as applied for, was modified, or was denied; and
new text end

new text begin (7) the period of disclosures authorized by the warrant, and the number and duration
of any extensions of the warrant.
new text end

new text begin (b) In June of each year, beginning in 2014, the state court administrator shall
transmit to the legislature a full and complete record concerning the number of applications
for warrant authorizing or requiring the disclosure of location information, the number of
times access to location information was obtained pursuant to subdivision 2, paragraph
(b), clause (5), and the number of notices of emergency access received under subdivision
2, paragraph (b), during the preceding calendar year. The report shall include a summary
and analysis of the data required to be filed with the state court administrator by paragraph
(a). The state court administrator is authorized to issue binding regulations dealing with
the content and form of the reports required to be filed by paragraph (a).
new text end

new text begin (c) In June of each year, beginning in 2014, a nonclassified summary of the report
shall be made publicly available on the Web site for the state court administrator.
new text end

new text begin Subd. 5. new text end

new text begin Prohibition on use of evidence. new text end

new text begin (a) Except as proof of a violation of
this section, no evidence obtained in violation of this section shall be admissible in any
criminal, civil, administrative, or other proceeding.
new text end

new text begin (b) Any location information obtained pursuant to this chapter or evidence derived
therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing,
or other proceeding in a federal or state court unless each party, not less than ten days
before the trial, hearing, or proceeding, has been furnished with a copy of the warrant,
and accompanying application, under which the information was obtained. This ten-day
period may be waived by the judge if the judge finds that it was not possible to furnish a
party with the required information ten days before the trial, hearing, or proceeding and
that a party will not be prejudiced by the delay in receiving such information.
new text end