SF 2466

3rd Engrossment - 88th Legislature (2013 - 2014) Posted on 10/30/2014 11:38am

A bill for an act
relating to public safety; requiring law enforcement to secure a tracking 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, 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.

(d) Notwithstanding paragraph (b), a provider of electronic communication service
or remote computing service may not disclose location information covered by section
626A.42 to a government entity except as provided in that section.

Sec. 2.

[626A.42] ELECTRONIC DEVICE LOCATION INFORMATION.

Subdivision 1.

Definitions.

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

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

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

(d) "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.

(e) "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.

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

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

(h) "Tracking warrant" means an order in writing, in the name of the state, signed
by a court other than a court exercising probate jurisdiction, directed to a peace officer,
granting the officer access to location information of an electronic device.

Subd. 2.

Tracking 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 tracking warrant. A warrant granting access to location
information must be issued only if the government entity shows that there is probable cause
the person who possesses an electronic device is committing, has committed, or is about to
commit a crime. An application for a warrant must be made in writing and include:

(1) the identity of the government entity's peace officer making the application, and
the officer authorizing the application; and

(2) a full and complete statement of the facts and circumstances relied on by the
applicant to justify the applicant's belief that a warrant should be issued, including (i)
details as to the particular offense that has been, is being, or is about to be committed,
and (ii) the identity of the person, if known, committing the offense whose location
information is to be obtained.

(b) A government entity may obtain location information without a tracking 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, documented 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 pursuant to sections
237.82 and 237.83.

Subd. 3.

Time period and extensions.

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

Subd. 4.

Notice; temporary nondisclosure of tracking warrant.

(a) Within a
reasonable time but not later than 90 days after the court unseals the tracking warrant
under this subdivision, the issuing or denying judge shall cause to be served on the persons
named in the warrant and the application an inventory which shall include notice of:

(1) the fact of the issuance of the warrant or the application;

(2) the date of the issuance and the period of authorized, approved, or disapproved
collection of location information, or the denial of the application; and

(3) the fact that during the period location information was or was not collected.

(b) A tracking warrant authorizing collection of location information must direct that:

(1) the warrant be sealed for a period of 90 days or until the objective of the warrant
has been accomplished, whichever is shorter; and

(2) the warrant be filed with the court administrator within ten days of the expiration
of the warrant.

(c) The prosecutor may request that the tracking warrant, supporting affidavits, and
any order granting the request not be filed. An order must be issued granting the request in
whole or in part if, from affidavits, sworn testimony, or other evidence, the court finds
reasonable grounds exist to believe that filing the warrant may cause the search or a related
search to be unsuccessful, create a substantial risk of injury to an innocent person, or
severely hamper an ongoing investigation.

(d) The tracking warrant must direct that following the commencement of any
criminal proceeding utilizing evidence obtained in or as a result of the search, the
supporting application or affidavit must be filed either immediately or at any other time as
the court directs. Until such filing, the documents and materials ordered withheld from
filing must be retained by the judge or the judge's designee.

Subd. 5.

Report concerning collection of location information.

(a) At the same
time as notice is provided under subdivision 4, the issuing or denying judge shall report
to the state court administrator:

(1) the fact that a tracking warrant or extension was applied for;

(2) the fact that the warrant or extension was granted as applied for, was modified,
or was denied;

(3) the period of collection authorized by the warrant, and the number and duration
of any extensions of the warrant;

(4) the offense specified in the warrant or application, or extension of a warrant;

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

(6) the identity of the applying investigative or peace officer and agency making
the application and the person authorizing the application.

(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 tracking warrants
authorizing the collection of location 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 subdivision. 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.

Subd. 6.

Prohibition on use of evidence.

(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.

(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 tracking 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 the information.