HF 2668

as introduced - 89th Legislature (2015 - 2016) Posted on 05/04/2016 02:11pm

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;
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new text begin (3) destruction of or tampering with evidence;
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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
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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 13.173, 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 13.173, 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 Web site 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 Web site.
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