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SF 2466

Conference Committee Report - 88th Legislature (2013 - 2014) Posted on 05/13/2014 01:06pm

KEY: stricken = removed, old language.
underscored = added, new language.
1.2A bill for an act
1.3relating to public safety; requiring law enforcement to secure a tracking warrant
1.4in order to receive cell phone tracking data;amending Minnesota Statutes 2012,
1.5section 626A.28, subdivision 3; proposing coding for new law in Minnesota
1.6Statutes, chapter 626A.
1.7May 12, 2014
1.8The Honorable Sandra L. Pappas
1.9President of the Senate
1.10The Honorable Paul Thissen
1.11Speaker of the House of Representatives
1.12We, the undersigned conferees for S.F. No. 2466 report that we have agreed upon
1.13the items in dispute and recommend as follows:
1.14That the House recede from its amendments and that S.F. No. 2466 be further
1.15amended as follows:
1.16Delete everything after the enacting clause and insert:

1.17    "Section 1. Minnesota Statutes 2012, section 626A.28, subdivision 3, is amended to
1.19    Subd. 3. Records concerning electronic communication service or remote
1.20computing service. (a) Except as provided in paragraph (b) or chapter 325M, a provider
1.21of electronic communication service or remote computing service may disclose a record
1.22or other information pertaining to a subscriber to or customer of the service, not including
1.23the contents of communications covered by subdivision 1 or 2, to any person other than a
1.24governmental entity.
1.25(b) A provider of electronic communication service or remote computing service
1.26may disclose a record or other information pertaining to a subscriber to or customer of the
1.27service, not including the contents of communications covered by subdivision 1 or 2, to a
1.28governmental entity only when the governmental entity:
1.29(1) uses an administrative subpoena authorized by statute, or a grand jury subpoena;
1.30(2) obtains a warrant;
2.1(3) obtains a court order for such disclosure under subdivision 4; or
2.2(4) has the consent of the subscriber or customer to the disclosure.
2.3(c) A governmental entity receiving records or information under this subdivision is
2.4not required to provide notice to a subscriber or customer.
2.5(d) Notwithstanding paragraph (b), a provider of electronic communication service
2.6or remote computing service may not disclose location information covered by section
2.7626A.42 to a government entity except as provided in that section.

2.9    Subdivision 1. Definitions. (a) The definitions in this subdivision apply to this
2.11(b) "Electronic communication service" has the meaning given in section 626A.01,
2.12subdivision 17.
2.13(c) "Electronic device" means a device that enables access to or use of an electronic
2.14communication service, remote computing service, or location information service.
2.15(d) "Government entity" means a state or local agency, including but not limited to a
2.16law enforcement entity or any other investigative entity, agency, department, division,
2.17bureau, board, or commission or an individual acting or purporting to act for or on behalf
2.18of a state or local agency.
2.19(e) "Location information" means information concerning the location of an
2.20electronic device that, in whole or in part, is generated or derived from or obtained by the
2.21operation of an electronic device.
2.22(f) "Location information service" means the provision of a global positioning
2.23service or other mapping, locational, or directional information service.
2.24(g) "Remote computing service" has the meaning given in section 626A.34.
2.25(h) "Tracking warrant" means an order in writing, in the name of the state, signed
2.26by a court other than a court exercising probate jurisdiction, directed to a peace officer,
2.27granting the officer access to location information of an electronic device.
2.28    Subd. 2. Tracking warrant required for location information. (a) Except as
2.29provided in paragraph (b), a government entity may not obtain the location information of
2.30an electronic device without a tracking warrant. A warrant granting access to location
2.31information must be issued only if the government entity shows that there is probable cause
2.32the person who possesses an electronic device is committing, has committed, or is about to
2.33commit a crime. An application for a warrant must be made in writing and include:
2.34(1) the identity of the government entity's peace officer making the application, and
2.35the officer authorizing the application; and
3.1(2) a full and complete statement of the facts and circumstances relied on by the
3.2applicant to justify the applicant's belief that a warrant should be issued, including (i)
3.3details as to the particular offense that has been, is being, or is about to be committed,
3.4and (ii) the identity of the person, if known, committing the offense whose location
3.5information is to be obtained.
3.6(b) A government entity may obtain location information without a tracking warrant:
3.7(1) when the electronic device is reported lost or stolen by the owner;
3.8(2) in order to respond to the user's call for emergency services;
3.9(3) with the informed, affirmative, documented consent of the owner or user of the
3.10electronic device;
3.11(4) with the informed, affirmative consent of the legal guardian or next of kin of
3.12the owner or user if the owner or user is believed to be deceased or reported missing and
3.13unable to be contacted; or
3.14(5) in an emergency situation that involves the risk of death or serious physical harm
3.15to a person who possesses an electronic communications device pursuant to sections
3.16237.82 and 237.83.
3.17    Subd. 3. Time period and extensions. (a) A tracking warrant issued under this
3.18section must authorize the collection of location information for a period not to exceed
3.1960 days, or the period of time necessary to achieve the objective of the authorization,
3.20whichever is less.
3.21(b) Extensions of a tracking warrant may be granted, but only upon an application
3.22for an order and upon the judicial finding required by subdivision 2, paragraph (a). The
3.23period of extension must be for a period not to exceed 60 days, or the period of time
3.24necessary to achieve the objective for which it is granted, whichever is less.
3.25(c) Paragraphs (a) and (b) apply only to tracking warrants issued for the
3.26contemporaneous collection of electronic device location information.
3.27    Subd. 4. Notice; temporary nondisclosure of tracking warrant. (a) Within a
3.28reasonable time but not later than 90 days after the court unseals the tracking warrant
3.29under this subdivision, the issuing or denying judge shall cause to be served on the persons
3.30named in the warrant and the application an inventory which shall include notice of:
3.31(1) the fact of the issuance of the warrant or the application;
3.32(2) the date of the issuance and the period of authorized, approved, or disapproved
3.33collection of location information, or the denial of the application; and
3.34(3) the fact that during the period location information was or was not collected.
3.35(b) A tracking warrant authorizing collection of location information must direct that:
4.1(1) the warrant be sealed for a period of 90 days or until the objective of the warrant
4.2has been accomplished, whichever is shorter; and
4.3(2) the warrant be filed with the court administrator within ten days of the expiration
4.4of the warrant.
4.5(c) The prosecutor may request that the tracking warrant, supporting affidavits, and
4.6any order granting the request not be filed. An order must be issued granting the request in
4.7whole or in part if, from affidavits, sworn testimony, or other evidence, the court finds
4.8reasonable grounds exist to believe that filing the warrant may cause the search or a related
4.9search to be unsuccessful, create a substantial risk of injury to an innocent person, or
4.10severely hamper an ongoing investigation.
4.11(d) The tracking warrant must direct that following the commencement of any
4.12criminal proceeding utilizing evidence obtained in or as a result of the search, the
4.13supporting application or affidavit must be filed either immediately or at any other time as
4.14the court directs. Until such filing, the documents and materials ordered withheld from
4.15filing must be retained by the judge or the judge's designee.
4.16    Subd. 5. Report concerning collection of location information. (a) At the same
4.17time as notice is provided under subdivision 4, the issuing or denying judge shall report
4.18to the state court administrator:
4.19(1) the fact that a tracking warrant or extension was applied for;
4.20(2) the fact that the warrant or extension was granted as applied for, was modified,
4.21or was denied;
4.22(3) the period of collection authorized by the warrant, and the number and duration
4.23of any extensions of the warrant;
4.24(4) the offense specified in the warrant or application, or extension of a warrant;
4.25(5) whether the collection required contemporaneous monitoring of an electronic
4.26device's location; and
4.27(6) the identity of the applying investigative or peace officer and agency making
4.28the application and the person authorizing the application.
4.29(b) On or before November 15 of each even-numbered year, the state court
4.30administrator shall transmit to the legislature a report concerning: (1) all tracking warrants
4.31authorizing the collection of location information during the two previous calendar
4.32years; and (2) all applications that were denied during the two previous calendar years.
4.33Each report shall include a summary and analysis of the data required to be filed under
4.34this subdivision. The report is public and must be available for public inspection at the
4.35Legislative Reference Library and the state court administrator's office and Web site.
5.1    Subd. 6. Prohibition on use of evidence. (a) Except as proof of a violation of
5.2this section, no evidence obtained in violation of this section shall be admissible in any
5.3criminal, civil, administrative, or other proceeding.
5.4(b) Any location information obtained pursuant to this chapter or evidence derived
5.5therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or
5.6other proceeding in a federal or state court unless each party, not less than ten days before
5.7the trial, hearing, or proceeding, has been furnished with a copy of the tracking warrant,
5.8and accompanying application, under which the information was obtained. This ten-day
5.9period may be waived by the judge if the judge finds that it was not possible to furnish a
5.10party with the required information ten days before the trial, hearing, or proceeding and
5.11that a party will not be prejudiced by the delay in receiving the information."
5.12Delete the title and insert:
5.13"A bill for an act
5.14relating to public safety; requiring law enforcement to secure a tracking warrant
5.15in order to receive electronic device location information;amending Minnesota
5.16Statutes 2012, section 626A.28, subdivision 3; proposing coding for new law in
5.17Minnesota Statutes, chapter 626A."
We request the adoption of this report and repassage of the bill.
Senate Conferees:
Branden Petersen
D. Scott Dibble
Bobby Joe Champion
House Conferees:
Joe Atkins
John Lesch
Tony Cornish