Minnesota Session Laws - 1988, Regular Session

  

                         Laws of Minnesota 1988 

                        CHAPTER 577-S.F.No. 2402 
           An act relating to criminal procedure; updating the 
          wiretap law to conform to modern electronic 
          communication technologies; providing procedures for 
          interception of wire, electronic, or oral 
          communication; regulating use of pen registers and 
          trap and trace devices; prescribing penalties; 
          amending Minnesota Statutes 1986, section 626A.01, 
          subdivisions 3, 4, 5, 6, 8, 9, and by adding 
          subdivisions; 626A.02, subdivisions 1, 2, and by 
          adding subdivisions; 626A.03, subdivisions 1, and 2; 
          626A.05, subdivision 1; 626A.06, subdivisions 3, 4, 5, 
          6, and by adding subdivisions; 626A.08, subdivision 1; 
          626A.09, subdivisions 1, 2, 3, 4, and 5; 626A.10, 
          subdivisions 1 and 2; 626A.11, subdivisions 1 and 2, 
          and by adding a subdivision; 626A.12, subdivision 1, 
          and by adding a subdivision; 626A.13; Minnesota 
          Statutes 1987 Supplement, section 626A.05, subdivision 
          2; proposing coding for new law in Minnesota Statutes, 
          chapter 626A; repealing Minnesota Statutes 1986, 
          sections 626A.01 to 626A.04; 626A.05, as amended; and 
          626A.06 to 626A.23. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 626A.01, 
subdivision 3, is amended to read:  
    Subd. 3.  [WIRE COMMUNICATIONS.] "Wire communication" means 
any communication aural transfer made in whole or in part 
through the use of facilities for the transmission of 
communications by the aid of wire, cable, or other like 
connection between the point of origin and the point of 
reception, including the use of such connection in a switching 
station.  "Wire communication" includes any electronic storage 
of the communication, but does not include the radio portion of 
a cordless telephone communication that is transmitted between 
the cordless telephone handset and the base unit.  
    Sec. 2.  Minnesota Statutes 1986, section 626A.01, 
subdivision 4, is amended to read:  
    Subd. 4.  [ORAL COMMUNICATION.] "Oral communication" means 
any oral communication uttered by a person exhibiting an 
expectation that such communication is not subject to 
interception under circumstances justifying such expectation, 
but the term does not include any electronic communication. 
    Sec. 3.  Minnesota Statutes 1986, section 626A.01, 
subdivision 5, is amended to read:  
    Subd. 5.  [INTERCEPT.] "Intercept" means the aural or other 
acquisition of the contents of any wire, electronic, or oral 
communication through the use of any electronic, mechanical, or 
other device. 
    Sec. 4.  Minnesota Statutes 1986, section 626A.01, 
subdivision 6, is amended to read:  
    Subd. 6.  [ELECTRONIC, MECHANICAL OR OTHER DEVICE.] 
"Electronic, mechanical, or other device" means any device or 
apparatus which can be used to intercept a wire, electronic, or 
oral communication other than 
    (a) any telephone or telegraph instrument, equipment or 
facility, or any component thereof, (i) furnished to the 
subscriber or user by a communications common carrier provider 
or wire or electronic communications service in the ordinary 
course of its business and being used by the subscriber or user 
in the ordinary course of its business or furnished by a 
subscriber or user for connection to the facilities of service 
and used in the ordinary course of its business; or (ii) being 
used by a communications common carrier in the ordinary course 
of its business, or by an investigative or law enforcement 
officer in the ordinary course of duties; 
    (b) a hearing aid or similar device being used to correct 
subnormal hearing to not better than normal; 
    (c) that which is specifically designed to only record 
conversations to which the operator of the device is a party; 
    (d) that which is used in the normal course of broadcasting 
by radio or television; or 
    (e) that which is otherwise commonly used for a purpose or 
purposes other than overhearing or recording conversations. 
    In determining whether a device which is alleged to be an 
electronic, mechanical or other device is, in fact, such a 
device there shall be taken into account, among other things, 
the size, appearance, directivity, range, sensitivity, 
frequency, power, or intensity, and the representations of the 
maker or manufacturer as to its performance and use. 
    Sec. 5.  Minnesota Statutes 1986, section 626A.01, 
subdivision 8, is amended to read:  
    Subd. 8.  [CONTENTS.] "Contents", when used with respect to 
any wire, electronic, or oral communication, includes any 
information concerning the identity of the parties to such 
communication or the existence, substance, purport, or meaning 
of that communication. 
    Sec. 6.  Minnesota Statutes 1986, section 626A.01, 
subdivision 9, is amended to read:  
    Subd. 9.  [AGGRIEVED PERSON.] "Aggrieved person" means a 
person who was a party to any intercepted wire, electronic, or 
oral communication or a person against whom the interception was 
directed. 
    Sec. 7.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 14.  [ELECTRONIC COMMUNICATION.] "Electronic 
communication" means transfer of signs, signals, writing, 
images, sounds, data, or intelligence of any nature transmitted 
in whole or in part by a wire, radio, electromagnetic, 
photoelectronic, or photooptical system but does not include:  
    (1) the radio portion of a cordless telephone communication 
that is transmitted between the cordless telephone handset and 
the base unit;  
    (2) a wire or oral communication;  
    (3) a communication made through a tone-only paging device; 
or 
    (4) a communication from a tracking device, defined as an 
electronic or mechanical device which permits the tracking of 
the movement of a person or object. 
    Sec. 8.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 15.  [USER.] "User" means a person or entity who:  
    (1) uses an electronic communication service; and 
    (2) is duly authorized by the provider of the service to 
engage in the use. 
    Sec. 9.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 16.  [ELECTRONIC COMMUNICATIONS SYSTEM.] "Electronic 
communications system" means a wire, radio, electromagnetic, 
photooptical, or photoelectronic facility for the transmission 
of electronic communications, and a computer facility or related 
electronic equipment for the electronic storage of 
communications. 
    Sec. 10.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 17.  [ELECTRONIC COMMUNICATION SERVICE.] "Electronic 
communication service" means a service that provides to users of 
the service the ability to send or receive wire or electronic 
communications. 
    Sec. 11.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 18.  [READILY ACCESSIBLE TO THE GENERAL 
PUBLIC.] "Readily accessible to the general public" means, with 
respect to a radio communication, that the communication is not: 
    (1) scrambled or encrypted;  
    (2) transmitted using modulation techniques whose essential 
parameters have been withheld from the public with the intention 
of preserving the privacy of the communication;  
    (3) carried on a subcarrier or other signal subsidiary to a 
radio transmission; 
    (4) transmitted over a communication system provided by a 
common carrier, unless the communication is a tone only paging 
system communication; or 
    (5) transmitted on frequencies allocated under part 25, 
subpart D, E, or F of part 74, or part 94 of title 47 of the 
Code of Federal Regulations, unless in the case of a 
communication transmitted on a frequency allocated under part 74 
of title 47 of the Code of Federal Regulations that is not 
exclusively allocated to broadcast auxiliary services, the 
communication is a two-way voice communication by radio.  
    Sec. 12.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 19.  [ELECTRONIC STORAGE.] "Electronic storage" means:
    (1) a temporary, intermediate storage of a wire or 
electronic communication incidental to the electronic 
transmission of the communication; and 
    (2) a storage of communication described in clause (1) by 
an electronic communication service for purposes of backup 
protection of the communication. 
    Sec. 13.  Minnesota Statutes 1986, section 626A.01, is 
amended by adding a subdivision to read: 
    Subd. 20.  [AURAL TRANSFER.] "Aural transfer" means a 
transfer containing the human voice at any point between and 
including the point of origin and the point of reception. 
    Sec. 14.  Minnesota Statutes 1986, section 626A.02, 
subdivision 1, is amended to read:  
    Subdivision 1.  [OFFENSES.] Except as otherwise 
specifically provided in sections 626A.01 to 626A.23 any person 
who 
    (a) willfully intentionally intercepts, endeavors to 
intercept, or procures any other person to intercept or endeavor 
to intercept, any wire, electronic, or oral communication; 
    (b) willfully intentionally uses, endeavors to use, or 
procures any other person to use or endeavor to use any 
electronic, mechanical, or other device to intercept any oral 
communication when 
    (i) such device is affixed to, or otherwise transmits a 
signal through, a wire, cable, or other like connection used in 
wire communication; or 
    (ii) such device transmits communications by radio, or 
interferes with the transmission of such communication; 
    (c) willfully intentionally discloses, or endeavors to 
disclose, to any other person the contents of any wire, 
electronic, or oral communication, knowing or having reason to 
know that the information was obtained through the interception 
of a wire, electronic, or oral communication in violation of 
this subdivision; or 
    (d) willfully intentionally uses, or endeavors to use, the 
contents of any wire, electronic, or oral communication, knowing 
or having reason to know that the information was obtained 
through the interception of a wire, electronic, or oral 
communication in violation of this subdivision; shall be fined 
not more than $20,000 or imprisoned not more than five years, or 
both shall be punished as provided in section 17, or shall be 
subject to suit as provided in section 18.  
    Sec. 15.  Minnesota Statutes 1986, section 626A.02, 
subdivision 2, is amended to read:  
    Subd. 2.  [EXEMPTIONS.] (a) It shall is not be unlawful 
under sections 626A.01 to 626A.23 for an operator of a 
switchboard, or an officer, employee, or agent of any 
communication common carrier a provider of wire or electronic 
communication service, whose facilities are used in the 
transmission of a wire communication, to intercept, disclose, or 
use that communication in the normal course of employment while 
engaged in any activity which is a necessary incident to the 
rendition of service or to the protection of the rights or 
property of the carrier of such communication:  provided, that 
said communication common carriers of the provider of that 
service, except that a provider of wire communication service to 
the public shall not utilize service observing or random 
monitoring except for mechanical or service quality control 
checks.  
    (b) It shall is not be unlawful under sections 626A.01 to 
626A.23 for an officer, employee, or agent of the Federal 
Communications Commission, in the normal course of employment 
and in discharge of the monitoring responsibilities exercised by 
the commission in the enforcement of chapter 5 of title 47 of 
the United States Code, to intercept a wire or electronic 
communication, or oral communication transmitted by radio, or to 
disclose or use the information thereby obtained.  
    (c) It shall is not be unlawful under sections 626A.01 to 
626A.23 for a person acting under color of law to intercept a 
wire, electronic, or oral communication, where such person is a 
party to the communication or one of the parties to the 
communication has given prior consent to such interception.  
    (d) It shall is not be unlawful under this chapter 
sections 626A.01 to 626A.23 for a person not acting under color 
of law to intercept a wire, electronic, or oral communication 
where such person is a party to the communication or where one 
of the parties to the communication has given prior consent to 
such interception unless such communication is intercepted for 
the purpose of committing any criminal or tortious act in 
violation of the constitution or laws of the United States or of 
any state or for the purpose of committing any other injurious 
act.  
    (e) It is not a violation of sections 626A.01 to 626A.23 or 
sections 47 to 55 for a person:  
    (1) to intercept or access an electronic communication made 
through an electronic communication system that is configured so 
that the electronic communication is readily accessible to the 
general public;  
    (2) to intercept any radio communication that is 
transmitted:  
    (i) by a station for the use of the general public, or that 
relates to ships, aircraft, vehicles, or persons in distress;  
    (ii) by a governmental, law enforcement, civil defense, 
private land mobile, or public safety communications system, 
including police and fire, readily accessible to the general 
public;  
    (iii) by a station operating on an authorized frequency 
within the bands allocated to the amateur, citizens band, or 
general mobile radio services; or 
    (iv) by a marine or aeronautical communications system;  
    (3) to engage in any conduct which:  
    (i) is prohibited by section 553 of title 47 of the United 
States Code; or 
    (ii) is excepted from the application of section 605(a) of 
title 47 of the United States Code by section 605(b) of that 
title;  
    (4) to intercept a wire or electronic communication the 
transmission of which is causing harmful interference to any 
lawfully operating station or consumer electronic equipment, to 
the extent necessary to identify the source of such 
interference; or 
    (5) for other users of the same frequency to intercept any 
radio communication made through a system that utilizes 
frequencies monitored by individuals engaged in the provision or 
the use of such system, if the communication is not scrambled or 
encrypted. 
    (f) It is not unlawful under sections 626A.01 to 626A.23:  
    (1) to use a pen register or a trap and trace device as 
those terms are defined by section 60; or 
    (2) for a provider of electronic communication service to 
record the fact that a wire or electronic communication was 
initiated or completed in order to protect the provider, another 
provider furnishing service toward the completion of the wire or 
electronic communication, or a user of that service, from 
fraudulent, unlawful, or abusive use of the service. 
    Sec. 16.  Minnesota Statutes 1986, section 626A.02, is 
amended by adding a subdivision to read: 
    Subd. 3.  [DISCLOSING COMMUNICATIONS.] (a) Except as 
provided in paragraph (b) of this subdivision, a person or 
entity providing an electronic communications service to the 
public must not intentionally divulge the contents of any 
communication other than one to the person or entity, or an 
agent of the person or entity, while in transmission on that 
service to a person or entity other than an addressee or 
intended recipient of the communication or an agent of the 
addressee or intended recipient.  
    (b) A person or entity providing electronic communication 
service to the public may divulge the contents of a 
communication:  
    (1) as otherwise authorized in subdivision 2, paragraph 
(a), and section 626A.09;  
    (2) with the lawful consent of the originator or any 
addressee or intended recipient of the communication;  
    (3) to a person employed or authorized, or whose facilities 
are used, to forward the communication to its destination; or 
    (4) that were inadvertently obtained by the service 
provider and that appear to pertain to the commission of a 
crime, if divulgence is made to a law enforcement agency. 
    Sec. 17.  Minnesota Statutes 1986, section 626A.02, is 
amended by adding a subdivision to read: 
    Subd. 4.  [PENALTIES.] (a) Except as provided in paragraph 
(b) of this subdivision or in section 18, whoever violates 
subdivision 1 of this section shall be fined not more than 
$20,000 or imprisoned not more than five years, or both. 
     (b) If the offense is a first offense under paragraph (a) 
of this subdivision and is not for a tortious or illegal purpose 
or for purposes of direct or indirect commercial advantage or 
private commercial gain, and the wire or electronic 
communication with respect to which the offense under paragraph 
(a) is a radio communication that is not scrambled or encrypted, 
then: 
    (1) if the communication is not the radio portion of a 
cellular telephone communication, a public land mobile radio 
service communication or a paging service communication, and the 
conduct is not that described in section 18, the offender shall 
be fined not more than $3,000 or imprisoned not more than one 
year, or both; and 
     (2) if the communication is the radio portion of a cellular 
telephone communication, a public land mobile radio service 
communication or a paging service communication, the offender 
shall be fined not more than $500. 
    (c) Conduct otherwise an offense under this subdivision 
that consists of or relates to the interception of a satellite 
transmission that is not encrypted or scrambled and that is 
transmitted: 
    (1) to a broadcasting station for purposes of 
retransmission to the general public; or 
    (2) as an audio subcarrier intended for redistribution to 
facilities open to the public, but not including data 
transmissions or telephone calls, 
is not an offense under this subdivision unless the conduct is 
for the purposes of direct or indirect commercial advantage or 
private financial gain. 
    Sec. 18.  Minnesota Statutes 1986, section 626A.02, is 
amended by adding a subdivision to read: 
    Subd. 5.  [CIVIL ACTION.] (a) (1) If the communication is: 
     (i) a private satellite video communication that is not 
scrambled or encrypted and the conduct in violation of this 
chapter is the private viewing of that communication and is not 
for a tortious or illegal purpose or for purposes of direct or 
indirect commercial advantage or private commercial gain; or 
     (ii) a radio communication that is transmitted on 
frequencies allocated under subpart D of part 74 of title 47 of 
the Code of Federal Regulations and that is not scrambled or 
encrypted and the conduct in violation of sections 626A.01 to 
626A.23 is not for a tortious or illegal purpose or for purposes 
of direct or indirect commercial advantage or private commercial 
gain, then the person who engages in such conduct is subject to 
suit by the county or city attorney in whose jurisdiction the 
violation occurs. 
    (2) In an action under this subdivision: 
    (i) if the violation of sections 626A.01 to 626A.23 is a 
first offense for the person under paragraph (a) of section 17, 
and the person has not been found liable in a civil action under 
section 626A.13, the city or county attorney is entitled to seek 
appropriate injunctive relief; and 
    (ii) if the violation of sections 626A.01 to 626A.23 is a 
second or subsequent offense under paragraph (a) of section 17, 
or the person has been found liable in a prior civil action 
under section 626A.13, the person is subject to a mandatory $500 
civil fine. 
    (b) The court may use any means within its authority to 
enforce an injunction issued under paragraph (a), clause (2)(i), 
and shall impose a civil fine of not less than $500 for each 
violation of such an injunction. 
    Sec. 19.  Minnesota Statutes 1986, section 626A.03, 
subdivision 1, is amended to read:  
    Subdivision 1.  Except as otherwise specifically provided 
in sections 626A.01 to 626A.23, any person who willfully 
intentionally 
    (a) manufactures, assembles, possesses, or sells any 
electronic, mechanical, or other device, knowing or having 
reason to know that the design of such device renders it 
primarily useful for the purpose of the surreptitious 
interception of wire, electronic, or oral communications; 
    (b) places in any newspaper, magazine, handbill, or other 
publication any advertisement of 
    (i) any electronic, mechanical, or other device knowing or 
having reason to know that the design of such device renders it 
primarily useful for the purpose of the surreptitious 
interception of wire, electronic, or oral communications; or 
    (ii) any other electronic, mechanical, or other device, 
where such advertisement promotes the use of such device for the 
purposes of the surreptitious interception of wire, electronic, 
or oral communications, shall be fined not more than $20,000 or 
imprisoned not more than five years, or both. 
    Sec. 20.  Minnesota Statutes 1986, section 626A.03, 
subdivision 2, is amended to read:  
    Subd. 2.  It shall is not be unlawful under this section 
for 
    (a) a provider of wire or electronic communications common 
carrier service or an officer, agent or employee of, or a person 
under contract with, a communications common carrier provider, 
in the normal course of the communications common carrier's 
business of providing that wire or electronic communications 
service, or 
    (b) an officer, agent, or employee of, or a person under 
contract with, the United States, a state, or a political 
subdivision thereof, in the normal course of the activities of 
the United States, a state, or a political subdivision thereof, 
to manufacture, assemble, possess, or sell any electronic, 
mechanical, or other device knowing or having reason to know 
that the design of such device renders it primarily useful for 
the purpose of the surreptitious interception of wire, 
electronic, or oral communication.  
    Sec. 21.  Minnesota Statutes 1986, section 626A.05, 
subdivision 1, is amended to read:  
    Subdivision 1.  [APPLICATION FOR WARRANT.] The attorney 
general, or not more than one assistant or special assistant 
attorney general specifically designated by the attorney 
general, or a county attorney of any county, or not more than 
one assistant county attorney specifically designated by the 
county attorney, may make application as provided in section 
626A.06, to a judge of the district court, of the court of 
appeals, or of the supreme court for a warrant authorizing or 
approving the interception of wire, electronic, or oral 
communications by investigative or law enforcement officers 
having responsibility for the investigation of the offense as to 
which the application is made.  No court commissioner shall 
issue a warrant under sections 626A.01 to 626A.23. 
    Sec. 22.  Minnesota Statutes 1987 Supplement, section 
626A.05, subdivision 2, is amended to read:  
    Subd. 2.  [OFFENSES FOR WHICH INTERCEPTION OF WIRE OR ORAL 
COMMUNICATION MAY BE AUTHORIZED.] A warrant authorizing 
interception of wire, electronic, or oral communications by 
investigative or law enforcement officers may only be issued 
when the interception may provide evidence of the commission of, 
or of an attempt or conspiracy to commit, any of the following 
offenses:  
    (1) a felony offense involving murder, manslaughter, 
assault in the first, second, and third degrees, aggravated 
robbery, kidnapping, criminal sexual conduct in the first, 
second, and third degrees, prostitution, bribery, perjury, 
escape from custody, theft, receiving stolen property, 
embezzlement, burglary in the first, second, and third degrees, 
forgery, aggravated forgery, check forgery, or financial 
transaction card fraud, as punishable under sections 609.185, 
609.19, 609.195, 609.20, 609.221, 609.222, 609.223, 609.2231, 
609.245, 609.25, 609.321 to 609.324, 609.342, 609.343, 609.344, 
609.42, 609.48, 609.485, subdivision 4, clause (1), 609.52, 
609.53, 609.54, 609.582, 609.625, 609.63, 609.631, 609.821, and 
609.825; or 
    (2) an offense relating to gambling or controlled 
substances, as punishable under section 609.76 or chapter 152; 
or 
     (3) an offense relating to restraint of trade defined in 
section 325D.53, subdivision 1 or 2, as punishable under section 
325D.56, subdivision 2. 
    Sec. 23.  Minnesota Statutes 1986, section 626A.06, 
subdivision 1, is amended to read:  
    Subdivision 1.  [THE APPLICATIONS.] Each application for a 
warrant authorizing or approving the interception of a wire, 
electronic, or oral communication shall be made in writing upon 
oath or affirmation to a judge of the district court or of the 
supreme court and shall state the applicant's authority to make 
such application.  Each application shall include the following 
information: 
    (a) the identity of the investigative or law enforcement 
officer making the application, and the officer authorizing the 
application; 
    (b) a full and complete statement of the facts and 
circumstances relied upon by the applicant, to justify the 
applicant's belief that an order should be issued, including (i) 
details as to the particular offense that has been, is being, or 
is about to be committed, (ii) except as provided in section 29, 
a particular description of the nature and location of the 
facilities from which or the place where the communication is to 
be intercepted, (iii) a particular description of the type of 
communications sought to be intercepted, (iv) the identity of 
the person, if known, committing the offense and whose 
communications are to be intercepted; 
    (c) a full and complete statement as to whether or not 
other investigative procedures have been tried and failed or why 
they reasonably appear to be unlikely to succeed if tried or to 
be too dangerous; 
    (d) a statement of the period of time for which the 
interception is required to be maintained.  If the nature of the 
investigation is such that the authorization for interception 
should not automatically terminate when the described type of 
communication has been first obtained, a particular description 
of facts establishing probable cause to believe that additional 
communications of the same type will occur thereafter; 
    (e) a full and complete statement of the facts concerning 
all previous applications known to the individual authorizing 
and making the application, made to any judge for authorization 
to intercept, or for approval of interceptions of, wire, 
electronic, or oral communications involving any of the same 
persons, facilities, or places specified in the application, and 
the action taken by the judge on each such application; 
    (f) where statements in the application are solely upon the 
information or belief of the applicant, the grounds for the 
belief must be given; and 
    (g) the names of persons submitting affidavits in support 
of the application.  
    Sec. 24.  Minnesota Statutes 1986, section 626A.06, 
subdivision 3, is amended to read:  
    Subd. 3.  [FINDING OF PROBABLE CAUSE BY THE JUDGE.] Upon 
such application the judge may enter an ex parte order, as 
requested or as modified, authorizing or approving interception 
of wire, electronic, or oral communications within the 
territorial jurisdiction of the court in which the judge is 
sitting, if the judge determines on the basis of the facts 
submitted by the applicant that: 
    (a) there is probable cause for belief that an individual 
is committing, has committed, or is about to commit a particular 
offense enumerated in section 626A.05, subdivision 2; 
    (b) there is probable cause for belief that particular 
communications concerning that offense will be obtained through 
such interception; 
    (c) normal investigative procedures have been tried and 
have failed or reasonably appear to be unlikely to succeed if 
tried or to be too dangerous; 
    (d) except as provided in section 29, there is probable 
cause for belief that the facilities from which, or the place 
where, the wire, electronic, or oral communications are to be 
intercepted are being used, or are about to be used, in 
connection with the commission of such offense, or are leased 
to, listed in the name of, or commonly used by such person.  
    Nothing in sections 626A.01 to 626A.23 is to be considered 
as modifying in any way the existence or scope of those 
privileged communications defined in chapter 595.  In acting 
upon an application for a warrant for intercepting 
communications, the potential contents of any such future 
communications that are within the provisions of chapter 595 
shall not be considered by the court in making its finding as to 
the probability that material evidence will be obtained by such 
interception of communications.  
    Sec. 25.  Minnesota Statutes 1986, section 626A.06, 
subdivision 4, is amended to read:  
    Subd. 4.  [THE WARRANT.] Each warrant to intercept 
communications shall be directed to a law enforcement officer, 
commanding the officer to hold the recording of all intercepted 
communications conducted under said warrant in custody subject 
to the further order of the court issuing the warrant.  The 
warrant shall contain the grounds for its issuance with 
findings, as to the existence of the matters contained in 
subdivision 1 and shall also specify: 
    (a) the identity of the person, if known, whose 
communications are to be intercepted and recorded; 
    (b) the nature and location of the communications 
facilities as to which, or the place where, authority to 
intercept is granted, and in the case of telephone or telegraph 
communications the general designation of the particular line or 
lines involved; 
    (c) a particular description of the type of communication 
sought to be intercepted, and a statement of the particular 
offense to which it relates; 
    (d) the identity of the law enforcement office or agency 
authorized to intercept the communications, the name of the 
officer or officers thereof authorized to intercept 
communications, and of the person authorizing the application; 
    (e) the period of time during which such interception is 
authorized, including a statement as to whether or not the 
interception shall automatically terminate when the described 
communication has been first obtained; 
    (f) any other limitations on the interception of 
communications being authorized, for the protection of the 
rights of third persons; 
    (g) a statement that using, divulging, or disclosing any 
information concerning such application and warrant for 
intercepting communications is prohibited and that any violation 
is punishable by the penalties of sections 626A.01 to 626A.23.  
    (h) a statement that the warrant shall be executed as soon 
as practicable, shall be executed in such a way as to minimize 
the interception of communications not otherwise subject to 
interception under sections 626A.01 to 626A.23 and must 
terminate upon attainment of the authorized objective, or in any 
event in ten days.  The ten-day period begins on the earlier of 
the day on which the investigative or law enforcement officer 
first begins to conduct an interception under the order or ten 
days after the order is received.  In the event the intercepted 
communication is in a code or foreign language, and an expert in 
that foreign language or code is not reasonably available during 
the interception period, minimization may be accomplished as 
soon as practicable after such interception.  
    An order authorizing the interception of a wire, oral, or 
electronic communication under sections 626A.01 to 626A.23 must, 
upon request of the applicant, direct that a provider of wire or 
electronic communication service, landlord, custodian, or other 
person shall furnish the applicant immediately all information, 
facilities, and technical assistance necessary to accomplish the 
interception unobtrusively and with a minimum of interference 
with the services that the service provider, landlord, 
custodian, or person is according the person whose 
communications are to be intercepted.  A provider of wire or 
electronic communication service, landlord, custodian, or other 
person furnishing facilities or technical assistance must be 
compensated by the applicant for reasonable expenses incurred in 
providing the facilities or assistance. 
    Denial of an application for a warrant to intercept 
communications or of an application for renewal of such warrant 
shall be by written order that shall include a statement as to 
the offense or offenses designated in the application, the 
identity of the official applying for the warrant and the name 
of the law enforcement office or agency.  
    Sec. 26.  Minnesota Statutes 1986, section 626A.06, is 
amended by adding a subdivision to read: 
    Subd. 4a.  [PERSONNEL USED.] An interception under sections 
626A.01 to 626A.23 may be conducted in whole or in part by 
employees of the state or any subdivision of the state, or by an 
individual operating under a contract with the state or one of 
its subdivisions, acting under the supervision of an 
investigative or law enforcement officer authorized to conduct 
the investigation. 
    Sec. 27.  Minnesota Statutes 1986, section 626A.06, 
subdivision 5, is amended to read:  
    Subd. 5.  [DURATION OF WARRANT.] No warrant entered under 
this section may authorize or approve the interception of any 
wire, electronic, or oral communication for any period longer 
than is necessary to achieve the objective of the authorization, 
nor in any event longer than ten days.  
    The effective period of any warrant for intercepting 
communications shall terminate immediately when any person named 
in the warrant has been charged with an offense specified in the 
warrant.  
    Sec. 28.  Minnesota Statutes 1986, section 626A.06, 
subdivision 6, is amended to read:  
    Subd. 6.  [EXTENSIONS.] Any judge of the district court, of 
the court of appeals, or of the supreme court may grant 
extensions of a warrant, but only upon application for an 
extension made in accordance with subdivision 1 and the court 
making the findings required by subdivision 3.  The period of 
extension shall be no longer than the authorizing judge deems 
necessary to achieve the purposes for which it was granted and 
in no event for longer than ten days.  In addition to satisfying 
the requirements of subdivision 1, an application for a renewal 
of any warrant for intercepting communications shall also: 
    (a) contain a statement that all interception of 
communications under prior warrants has been in compliance with 
sections 626A.01 to 626A.23; 
    (b) contain a statement setting forth the results thus far 
obtained from the interception or a reasonable explanation of 
the failure to obtain results; 
    (c) state the continued existence of the matters contained 
in subdivision 1; and 
    (d) specify the facts and circumstances of the interception 
of communications under prior warrants which are relied upon by 
the applicant to show that such continued interception of 
communications is necessary and in the public interest.  
    Any application to intercept communications of a person 
previously the subject of such a warrant for any offense 
designated in a prior warrant shall constitute a renewal of such 
warrant.  
    Sec. 29.  Minnesota Statutes 1986, section 626A.06, is 
amended by adding a subdivision to read: 
     Subd. 11.  [REQUIREMENTS INAPPLICABLE.] The requirements of 
subdivision 1, clause (b)(ii), and subdivision 3, clause (d), 
relating to the specification of the facilities from which, or 
the place where, the communication is to be interpreted do not 
apply if: 
    (1) in the case of an application with respect to the 
interception of an oral communication: 
    (i)  the application contains a full and complete statement 
as to why the specification is not practical and identifies the 
person committing the offense and whose communications are to be 
intercepted; and 
    (ii) the judge finds that the specification is not 
practical. 
    (2) in the case of an application with respect to a wire or 
electronic communication: 
    (i) the application identifies the person believed to be 
committing the offense and whose communications are to be 
intercepted and the applicant makes a showing of a purpose, on 
the part of that person, to thwart interception by changing 
facilities; and 
    (ii) the judge finds that the purpose has been adequately 
shown. 
    Sec. 30.  Minnesota Statutes 1986, section 626A.06, is 
amended by adding a subdivision to read: 
     Subd. 12.  [MOTION TO QUASH ORDER.] An interception of a 
communication under an order with respect to which the 
requirements of subdivision 1, clause (b)(ii), and subdivision 
3, clause (d), of this section do not apply by reason of section 
29 must not begin until the facilities from which, or the place 
where, the communication is to be intercepted is ascertained by 
the person implementing the interception order.  A provider of 
wire or electronic communications service that has received an 
order as provided for in section 29, clause (2), may move the 
court to modify or quash the order on the ground that its 
assistance with respect to the interception cannot be performed 
in a timely or reasonable fashion.  The court, upon notice to 
the attorney applying for the warrant, shall decide a motion 
expeditiously. 
    Sec. 31.  Minnesota Statutes 1986, section 626A.08, 
subdivision 1, is amended to read:  
    Subdivision 1.  [MATERIAL OBTAINED.] Every part of any 
wire, oral, or electronic communication, conversation, or 
discussion overheard intercepted pursuant to sections 626A.01 to 
626A.23 shall be completely recorded on tape or wire or other 
comparable device and shall be done in such manner as will 
protect the recording from editing or other alterations.  
Immediately upon the expiration of the period of the order, or 
extensions thereof, such recordings shall be made available to 
the judge issuing such order and sealed under the judge's 
directions.  Custody of the recordings shall be wherever the 
judge orders.  They shall not be destroyed except upon an order 
of the issuing or denying judge or a successor and in any event 
shall be kept for ten years.  Duplicate recordings may be made 
for use or disclosure pursuant to the provisions of section 
626A.09 for investigations.  The presence of the seal provided 
for by this subdivision, or a satisfactory explanation for the 
absence thereof, shall be a prerequisite for the use or 
disclosure of the contents of any wire, electronic, or oral 
communication or evidence derived therefrom under section 
626A.09.  
    Sec. 32.  Minnesota Statutes 1986, section 626A.09, 
subdivision 1, is amended to read:  
    Subdivision 1.  Any investigative or law enforcement 
officer who, by any means authorized by sections 626A.01 to 
626A.23, has obtained knowledge of the contents of any wire, 
electronic, or oral communication, or evidence derived therefrom 
may disclose such contents to another investigative or law 
enforcement officer to the extent that such disclosure is 
appropriate to the proper performance of the official duties of 
the officer making or receiving the disclosure.  
    Sec. 33.  Minnesota Statutes 1986, section 626A.09, 
subdivision 2, is amended to read:  
    Subd. 2.  Any investigative or law enforcement officer who, 
by any means authorized by sections 626A.01 to 626A.23, has 
obtained knowledge of the contents of any wire, electronic, or 
oral communication or evidence derived therefrom may use such 
contents to the extent such use is appropriate to the proper 
performance of official duties.  
    Sec. 34.  Minnesota Statutes 1986, section 626A.09, 
subdivision 3, is amended to read:  
    Subd. 3.  Any person who has received, by any means 
authorized by sections 626A.01 to 626A.23, any information 
concerning a wire, electronic, or oral communication, or 
evidence derived therefrom intercepted in accordance with the 
provisions of sections 626A.01 to 626A.23 may disclose the 
contents of that communication or such derivative evidence while 
giving testimony under oath or affirmation in any criminal 
proceeding in any court of the United States or of any state or 
in any federal or state grand jury proceeding.  
    Sec. 35.  Minnesota Statutes 1986, section 626A.09, 
subdivision 4, is amended to read:  
    Subd. 4.  No otherwise privileged wire, electronic, or oral 
communication intercepted in accordance with, or in violation 
of, the provisions of sections 626A.01 to 626A.23 shall lose its 
privileged character.  
    Sec. 36.  Minnesota Statutes 1986, section 626A.09, 
subdivision 5, is amended to read:  
    Subd. 5.  When an investigative or law enforcement officer, 
while engaged in intercepting wire, electronic, or oral 
communications in the manner authorized herein, intercepts wire, 
electronic, or oral communications relating to offenses other 
than those specified in the order of authorization or approval, 
the contents thereof, and evidence derived therefrom, may be 
disclosed or used as provided in subdivisions 1 and 2.  Such 
contents and any evidence derived therefrom may be used under 
subdivision 3 when authorized or approved by a judge of the 
district court where such judge finds on subsequent application 
that the contents were otherwise intercepted in accordance with 
the provisions of sections 626A.01 to 626A.23.  Such application 
shall be made as soon as practicable.  
    Sec. 37.  Minnesota Statutes 1986, section 626A.10, 
subdivision 1, is amended to read:  
    Subdivision 1.  [NOTICE OF ORDER.] Within a reasonable time 
but not later than 90 days after the termination of the period 
of a warrant or extensions thereof, the issuing or denying judge 
shall cause to be served, on the persons named in the warrant 
and the application, and such other parties to intercepted 
communications as the judge may determine that is in the 
interest of justice, 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 interception, or the denial of the 
application; and 
    (3) the fact that during the period wire, electronic, or 
oral communications were or were not intercepted.  
    Sec. 38.  Minnesota Statutes 1986, section 626A.10, 
subdivision 2, is amended to read:  
    Subd. 2.  [NOTICE OF INTENT TO USE EVIDENCE OBTAINED BY 
INTERCEPTION OF WIRE OR ORAL COMMUNICATION.] The contents of any 
intercepted wire, electronic, or oral communication or evidence 
derived therefrom shall not be received in evidence 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 court order, and accompanying application, 
under which the interception was authorized or approved.  This 
ten-day period may be waived by the judge if the judge finds 
that it was not possible to furnish the party with the above 
information ten days before the trial, hearing, or proceeding 
and that the party will not be prejudiced by the delay in 
receiving such information.  
    Sec. 39.  Minnesota Statutes 1986, section 626A.11, 
subdivision 1, is amended to read:  
    Subdivision 1.  [ILLEGALLY OBTAINED EVIDENCE INADMISSIBLE.] 
Evidence obtained by any act of intercepting wire or oral 
communications, in violation of section 626A.02, and all 
evidence obtained through or resulting from information obtained 
by any such act, shall be inadmissible for any purpose in any 
action, proceeding, or hearing; provided, however, that any such 
evidence shall be admissible in any civil or criminal action, 
proceeding, or hearing against the person who has, or is alleged 
to have, violated sections 626A.01 to 626A.23.  
    Sec. 40.  Minnesota Statutes 1986, section 626A.11, 
subdivision 2, is amended to read:  
    Subd. 2.  [OFFICIAL AVAILABLE AS A WITNESS.] No evidence 
obtained as a result of intercepting wire or oral communications 
pursuant to a warrant issued under section 626A.06 shall be 
admissible in any proceeding unless the law enforcement official 
or officials person or persons overhearing or recording such 
communication, conversation, or discussion be called or made 
available as witnesses subject to cross examination by the party 
against whom such intercepted evidence is being offered.  The 
provisions of this clause shall not apply if the trial court 
finds that such law enforcement official person is dead; or is 
out of the state; or is unable to attend or testify because of 
age, sickness, infirmity, or imprisonment; or that such 
exceptional circumstances exist as to make it desirable, in the 
interest of justice and with due regard to the importance of 
presenting such persons in open court, to allow the evidence to 
be received.  
    Sec. 41.  Minnesota Statutes 1986, section 626A.11, is 
amended by adding a subdivision to read: 
    Subd. 4.  [REMEDIES AND SANCTIONS.] The remedies and 
sanctions described in sections 626A.01 to 626A.23 with respect 
to the interception of electronic communications are the only 
judicial remedies and sanctions for nonconstitutional violations 
of sections 626A.01 to 626A.23 involving communications. 
    Sec. 42.  Minnesota Statutes 1986, section 626A.12, 
subdivision 1, is amended to read:  
    Subdivision 1.  [THE MOTION.] Any aggrieved person may move 
to suppress the contents of any intercepted wire or oral 
communication, or evidence derived therefrom on the grounds that:
    (i) the wire or oral communication was unlawfully 
intercepted; 
    (ii) the order of authorization or approval under which it 
was intercepted is insufficient on its face; 
    (iii) the interception was not made in conformity with the 
order of authorization or approval; 
    (iv) there was not probable cause for believing the 
existence of the grounds on which the warrant was issued; or 
    (v) the evidence was otherwise illegally obtained.  
    The court shall hear evidence upon any issue of fact 
necessary to a determination of the motion.  
    If the motion is granted, the contents of the intercepted 
wire or oral communication, or evidence derived therefrom, shall 
be treated as having been obtained in violation of sections 
626A.01 to 626A.23.  
    If the motion is denied, the order denying such may be 
reviewed on appeal from a judgment of conviction notwithstanding 
the fact that such judgment of conviction is predicated upon a 
plea of guilty.  
    Sec. 43.  Minnesota Statutes 1986, section 626A.12, is 
amended by adding a subdivision to read: 
    Subd. 1a.  [MOTION TO SUPPRESS.] Any aggrieved person may 
move to suppress the contents of any intercepted electronic 
communication on the ground that there was a constitutional 
violation. 
    Sec. 44.  Minnesota Statutes 1986, section 626A.13, is 
amended to read:  
    626A.13 [CIVIL REMEDIES.] 
    Any person whose wire or oral communication is intercepted, 
disclosed, or used in violation of sections 626A.01 to 626A.23 
shall (1) have a civil cause of action against any person who 
intercepts, discloses, or uses, or procures any other person to 
intercept, disclose, or use such communications, and (2) be 
entitled to the following remedies: 
    (a) to an injunction by any court of competent jurisdiction 
prohibiting further interception or use or divulgence by the 
person involved; 
    (b) to treble damages against the person or persons 
committing such interception, divulgence, or use, but in no 
event shall such recovery be less than $1,000; 
    (c) to any punitive damages that may be awarded by the 
court or jury; and 
    (d) a reasonable attorney's fee and other litigation costs 
reasonably incurred.  
    A good faith reliance on a court order shall constitute a 
complete defense to any civil or criminal action brought under 
sections 626A.01 to 626A.23.  Good faith reliance by a telephone 
or telegraph company on a warrant issued pursuant to sections 
626A.01 to 626A.23, or on provisions of sections 626A.01 to 
626A.23 requiring action by such company, shall constitute a 
complete defense to any civil action brought under sections 
626A.01 to 626A.23.  
    Subdivision 1.  [IN GENERAL.] Except as provided in section 
2511 (2)(a)(ii) of title 18 of the United States Code, a person 
whose wire, oral, or electronic communication is intercepted, 
disclosed, or intentionally used in violation of sections 
626A.01 to 626A.23 may in a civil action recover from the person 
or entity that engaged in that violation relief as may be 
appropriate. 
     Subd. 2.  [RELIEF.] In an action under this section, 
appropriate relief includes: 
    (1) temporary and other equitable or declaratory relief as 
may be appropriate; 
     (2) damages under subdivision 3 and punitive damages in 
appropriate cases; and 
    (3) a reasonable attorney's fee and other litigation costs 
reasonably incurred. 
     Subd. 3.  [COMPUTATION OF DAMAGES.] (a) In an action under 
this section, if the conduct in violation of sections 626A.01 to 
626A.23 is the private viewing of a private satellite video 
communication that is not scrambled or encrypted or if the 
communication is a radio communication that is transmitted on 
frequencies allocated under subpart D of part 74 of title 47 of 
the Code of Federal Regulations that is not scrambled or 
encrypted and the conduct is not for a tortious or illegal 
purpose or for purposes of direct or indirect commercial 
advantage or private commercial gain, then the court shall 
assess damages as follows: 
    (1) If the person who engaged in that conduct has not 
previously been enjoined under section 18, subdivision 5, and 
has not been found liable in a prior civil action under this 
section, the court shall assess the greater of the sum of actual 
damages suffered by the plaintiff, or statutory damages of not 
less than $50 and not more than $500. 
    (2) If, on one prior occasion, the person who engaged in 
that conduct has been enjoined under section 18, subdivision 5, 
or has been found liable in a civil action under this section, 
the court shall assess the greater of the sum of actual damages 
suffered by the plaintiff, or statutory damages of not less than 
$100 and not more than $1,000. 
    (b) In any other action under this section, the court may 
assess as damages whichever is the greater of: 
    (1) the sum of three times the actual damages suffered by 
the plaintiff and any profits made by the violator as a result 
of the violation; or 
    (2) statutory damages of whichever is the greater of $100 a 
day for each day of violation or $10,000. 
    Subd. 4.  [DEFENSE.] A good faith reliance on: 
    (1) a court warrant or order, a grand jury subpoena, a 
legislative authorization, or a statutory authorization; 
    (2) a request of an investigative or law enforcement 
officer under United States Code, title 18, section 2518(7); or 
    (3) a good faith determination that section 626A.02, 
subdivision 3, permitted the conduct complained of; 
is a complete defense against any civil or criminal action 
brought under sections 626A.01 to 626A.23 or any other law. 
    Subd. 5.  [LIMITATION.] A civil action under this section 
may not be begun later than two years after the date upon which 
the claimant first has a reasonable opportunity to discover the 
violation. 
    Sec. 45.  [626A.24] [MOBILE TRACKING DEVICES.] 
    Subdivision 1.  [WARRANT.] When an investigative or law 
enforcement officer, under sections 626.04 to 626.17, applies to 
the district court for a warrant or other order authorizing the 
installation of a mobile tracking device, the warrant or other 
order may authorize the use of the mobile tracking device within 
the jurisdiction of the court and outside of that jurisdiction 
as long as the device is installed in the jurisdiction. 
    Subd. 2.  [DEFINITION.] As used in this section, the term 
"tracking device," means an electronic or mechanical device that 
permits the tracking of the movement of a person or object. 
    Sec. 46.  [626A.25] [INJUNCTION AGAINST ILLEGAL 
INTERCEPTION.] 
    Whenever it appears that a person is engaged or is about to 
engage in an act that constitutes or will constitute a felony 
violation of sections 626A.01 to 626A.23, the attorney general 
or a county attorney may initiate a civil action in district 
court to enjoin the violation.  The court shall proceed as soon 
as practicable to the hearing and determination of the civil 
action, and may, at any time before final determination, enter a 
restraining order or prohibition, or take other action, as is 
warranted to prevent a continuing and substantial injury to the 
state, any of its subdivisions, or to a person or class of 
persons for whose protection the action is brought.  A 
proceeding under this section is governed by the Rules of Civil 
Procedure, except that, if the defendant has been charged with 
the felony, discovery against that defendant is governed by the 
Rules of Criminal Procedure. 
    Sec. 47.  [626A.26] [UNLAWFUL ACCESS TO STORED 
COMMUNICATIONS.] 
     Subdivision 1.  [OFFENSE.] Except as provided in 
subdivision 3, whoever: 
     (1) intentionally accesses without authorization a facility 
through which an electronic communication service is provided; 
or 
     (2) intentionally exceeds an authorization to access that 
facility; 
and thereby obtains, alters, or prevents authorized access to a 
wire or electronic communication while it is in the electronic 
storage in a system must be punished as provided in subdivision 
2. 
     Subd. 2.  [PUNISHMENT.] The punishment for an offense under 
subdivision 1 is: 
     (1) if the offense is committed for purposes of commercial 
advantage, malicious destruction or damage, or private 
commercial gain: 
     (i) a fine of not more than $250,000 or imprisonment for 
not more than one year, or both, in the case of a first offense 
under this clause; and 
     (ii) a fine of not more than $250,000 or imprisonment for 
not more than two years, or both, for any subsequent offense 
under this clause; 
    (2) a fine of not more than $5,000 or imprisonment for not 
more than six months, or both, in any other case. 
    Subd. 3.  [EXCEPTIONS.] Subdivision 1 does not apply with 
respect to conduct authorized: 
     (1) by the person or entity providing a wire or electronic 
communications service; 
     (2) by a user of that service with respect to a 
communication of or intended for that user; or 
    (3) in sections 626A.05 to 626A.09, section 49 or 50. 
     Sec. 48.  [626A.27] [DISCLOSURE OF CONTENTS.] 
     Subdivision 1.  [PROHIBITIONS.] Except as provided in 
subdivision 2: 
     (1) a person or entity providing an electronic 
communication service to the public must not knowingly divulge 
to a person or entity the contents of a communication while in 
electronic storage by that service; and 
     (2) a person or entity providing remote computing service 
to the public must not knowingly divulge to a person or entity 
the contents of any communication that is carried or maintained 
on that service: 
     (i) on behalf of, and received by means of electronic 
transmission from, or created by means of computer processing of 
communications received by means of electronic transmission, 
from a subscriber or customer of the service; and 
     (ii) solely for the purpose of providing storage or 
computer processing services to the subscriber or customer, if 
the provider is not authorized to access the contents of any 
communications for purposes of providing any services other than 
storage or computer processing. 
     Subd. 2.  [EXCEPTIONS.] A person or entity may divulge the 
contents of a communication: 
     (1) to an addressee or intended recipient of the 
communication or an agent of the addressee or intended recipient;
    (2) as otherwise authorized in sections 626A.02; 
subdivision 2, paragraph (a); 626A.05; or section 49; 
     (3) with the lawful consent of the originator or an 
addressee or intended recipient of the communication, or the 
subscriber in the case of remote computing service; 
     (4) to a person employed or authorized or whose facilities 
are used to forward a communication to its destination; 
     (5) as may be necessarily incident to the rendition of the 
service or to the protection of the rights or property of the 
provider of that service; or 
    (6) to a law enforcement agency, if the contents: 
     (i) were inadvertently obtained by the service provider; 
and 
     (ii) appear to pertain to the commission of a crime. 
     Sec. 49.  [626A.28] [REQUIREMENTS FOR GOVERNMENTAL ACCESS.] 
     Subdivision 1.  [CONTENTS OF ELECTRONIC COMMUNICATIONS IN 
ELECTRONIC STORAGE.] A governmental entity may require the 
disclosure by a provider of electronic communication service of 
the contents of an electronic communication that is in 
electronic storage in an electronic communications system for 
180 days or less only under a warrant.  A government entity may 
require the disclosure by a provider of electronic 
communications services of the contents of an electronic 
communication that has been in electronic storage in an 
electronic communications system for more than 180 days by the 
means available under subdivision 2. 
     Subd. 2.  [CONTENTS OF ELECTRONIC COMMUNICATIONS IN A 
REMOTE COMPUTING SERVICE.] (a) A governmental entity may require 
a provider of remote computing service to disclose the contents 
of electronic communication to which this paragraph is made 
applicable by paragraph (b): 
     (1) without required notice to the subscriber or customer, 
if the governmental entity obtains a warrant; or 
    (2) with prior notice if the governmental entity: 
    (i) uses an administrative subpoena authorized by statute 
or a grand jury subpoena; or 
    (ii) obtains a court order for such disclosure under 
subdivision 4; 
except that delayed notice may be given under section 51. 
    (b) Paragraph (a) is applicable with respect to any 
electronic communication that is held or maintained on that 
service: 
    (1) on behalf of, and received by means of electronic 
transmission from, or created by means of computer processing of 
communications received by means of electronic transmission 
from, a subscriber or customer of such remote computing service; 
and 
    (2) solely for the purpose of providing storage or computer 
processing services to the subscriber or customer, if the 
provider is not authorized to access the contents of any 
communications for purposes of providing any services other than 
storage or computer processing. 
    Subd. 3.  [RECORDS CONCERNING ELECTRONIC COMMUNICATION 
SERVICE OR REMOTE COMPUTING SERVICE.] 
    (a) (1) Except as provided in clause (2), 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. 
    (2) 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: 
    (i) uses an administrative subpoena authorized by statute, 
or a grand jury subpoena; 
    (ii) obtains a warrant; 
    (iii) obtains a court order for such disclosure under 
subdivision 4; or 
    (iv) has the consent of the subscriber or customer to the 
disclosure. 
    (b) A governmental entity receiving records or information 
under this subdivision is not required to provide notice to a 
subscriber or customer. 
    Subd. 4.  [REQUIREMENTS FOR COURT ORDER.] A court order for 
disclosure under subdivision 2 or 3 must issue only if the 
governmental entity shows that there is reason to believe the 
contents of a wire or electronic communication, or the records 
or other information sought, are relevant to a legitimate law 
enforcement inquiry.  A court issuing an order pursuant to this 
section, on a motion made promptly by the service provider, may 
quash or modify such order, if the information or records 
requested are unusually voluminous in nature or compliance with 
such order otherwise would cause an undue burden on such 
provider. 
    Subd. 5.  [NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING 
CERTAIN INFORMATION.] No cause of action lies in any court 
against any provider of wire or electronic communication 
service, its officers, employees, agents, or other specified 
persons for providing information, facilities, or assistance in 
accordance with the terms of a court order, warrant, subpoena, 
or certification under sections 47 to 55. 
    Sec. 50. [626A.29] [BACKUP PRESERVATION.] 
    Subdivision 1.  [BACKUP COPY.] (a) A governmental entity 
acting under section 49, subdivision 2, paragraph (b), may 
include in its subpoena or court order a requirement that the 
service provider to whom the request is directed create a backup 
copy of the contents of the electronic communications sought in 
order to preserve those communications.  Without notifying the 
subscriber or customer of the subpoena or court order, the 
service provider shall create a backup copy, as soon as 
practicable, consistent with its regular business practices and 
shall confirm to the governmental entity that the backup copy 
has been made.  The backup copy must be created within two 
business days after receipt by the service provider of the 
subpoena or court order. 
    (b) Notice to the subscriber or customer must be made by 
the governmental entity within three days after receipt of the 
confirmation, unless notice is delayed under section 51, 
subdivision 1. 
    (c) The service provider must not destroy a backup copy 
until the later of: 
    (1) the delivery of the information; or 
    (2) the resolution of any proceedings, including appeals of 
any proceeding, concerning the subpoena or court order. 
    (d) The service provider shall release the backup copy to 
the requesting governmental entity no sooner than 14 days after 
the governmental entity's notice to the subscriber or customer 
if the service provider: 
     (1) has not received notice from the subscriber or customer 
that the subscriber or customer has challenged the governmental 
entity's request; and 
    (2) has not initiated proceedings to challenge the request 
of the governmental entity. 
    (e) A governmental entity may seek to require the creation 
of a backup copy under subdivision 1, paragraph (a), if in its 
sole discretion the entity determines that there is reason to 
believe that notification under section 49 of the existence of 
the subpoena or court order may result in destruction of or 
tampering with evidence.  This determination is not subject to 
challenge by the subscriber or customer or service provider. 
    Subd. 2.  [CUSTOMER CHALLENGES.] (a) Within 14 days after 
notice by the governmental entity to the subscriber or customer 
under subdivision 1, paragraph (b), the subscriber or customer 
may file a motion to quash the subpoena or vacate the court 
order, with copies served upon the governmental entity and with 
written notice of the challenge to the service provider.  A 
motion to vacate a court order must be filed in the court which 
issued the order.  A motion to quash a subpoena must be filed in 
the district court of the county in which the governmental 
entity issuing the subpoena is located.  The motion or 
application must contain an affidavit or sworn statement: 
     (1) stating that the applicant is a customer or subscriber 
to the service from which the contents of electronic 
communications maintained for him have been sought; and 
     (2) stating the applicant's reasons for believing that the 
records sought are not relevant to a legitimate law enforcement 
inquiry or that there has not been substantial compliance with 
the provisions of this chapter in some other respect. 
     (b) Service must be made under this section upon a 
governmental entity by delivering or mailing by registered or 
certified mail a copy of the papers to the person, office, or 
department specified in the notice which the customer has 
received under sections 47 to 55.  For the purposes of this 
section, the term "delivery" means handing it to the person 
specified in the notice or handing it to the person, or his 
designee, in charge of the office or department specified in the 
notice. 
    (c) If the court finds that the customer has complied with 
paragraphs (a) and (b), the court shall order the governmental 
entity to file a sworn response.  The response may be filed in 
camera if the governmental entity includes in its response the 
reasons that make in camera review appropriate.  If the court is 
unable to determine the motion or application on the basis of 
the parties' initial allegations and response, the court may 
conduct additional proceedings as it considers appropriate.  
Proceedings must be completed and the motion or application 
decided as soon as practicable after the filing of the 
governmental entity's response. 
     (d) If the court finds that the applicant is not the 
subscriber or customer for whom the communications sought by the 
governmental entity are maintained, or that there is a reason to 
believe that the law enforcement inquiry is legitimate and that 
the communications sought are relevant to that inquiry, it shall 
deny the motion or application and order the process enforced.  
If the court finds that the applicant is the subscriber or 
customer for whom the communications sought by the governmental 
entity are maintained, and that there is not a reason to believe 
that the communications sought are relevant to a legitimate law 
enforcement inquiry, or that there has not been substantial 
compliance with the provisions of sections 47 to 55, it shall 
order the process quashed. 
    (e) A court order denying a motion or application under 
this section shall not be deemed a final order and no 
interlocutory appeal may be taken therefrom by the customer. 
    Sec. 51.  [626A.30] [DELAYED NOTICE.] 
    Subdivision 1.  [DELAY OF NOTIFICATION.] (a) A governmental 
entity acting under section 49, subdivision 2, may: 
    (1) where a court order is sought, include in the 
application a request, which the court shall grant, for an order 
delaying the notification required under section 49, subdivision 
2, for a period not to exceed 90 days, if the court determines 
that there is reason to believe that notification of the 
existence of the court order may have an adverse result 
described in paragraph (b) of this subdivision; or 
    (2) where an administrative subpoena or a grand jury 
subpoena is obtained, delay the notification required under 
section 49 for a period not to exceed 90 days upon the execution 
of a written certification of a supervisory official that there 
is reason to believe that notification of the existence of the 
subpoena may have an adverse result described in paragraph (b) 
of this subdivision. 
     (b) An adverse result for the purposes of paragraph (a) of 
this subdivision is: 
     (1) endangering the life or physical safety of an 
individual; 
     (2) flight from prosecution; 
     (3) destruction of or tampering with evidence; 
    (4) intimidation of potential witnesses; or 
    (5) otherwise seriously jeopardizing an investigation or 
unduly delaying a trial. 
    (c) The governmental entity shall maintain a true copy of 
certification under paragraph (a), clause (2). 
    (d) Extensions of the delay of notification provided in 
section 49 of up to 90 days each may be granted by the court 
upon application, or by certification by a governmental entity, 
but only in accordance with subdivision 2. 
    (e) Upon expiration of the period of delay of notification 
under paragraph (a) or (d) of this subdivision, the governmental 
entity shall serve upon, or deliver by registered or first-class 
mail to, the customer or subscriber a copy of the process or 
request together with notice that: 
     (1) states with reasonable specificity the nature of the 
law enforcement inquiry; and 
     (2) informs the customer or subscriber: 
     (i) that information maintained for the customer or 
subscriber by the service provider named in the process or 
request was supplied to or requested by that governmental 
authority and the date on which the supplying or request took 
place; 
     (ii) that notification of the customer or subscriber was 
delayed; 
    (iii) what governmental entity or court made the 
certification or determination under which that delay was made; 
and 
    (iv) which provision of sections 47 to 55 allowed such 
delay. 
    (f) As used in this subdivision, the term "supervisory 
official" means a peace officer with the rank of sergeant, or 
its equivalent, or above, a special agent in charge from the 
bureau of criminal apprehension, the attorney general, the head 
of the attorney general's criminal division, a county attorney, 
or the head of a county attorney's criminal division. 
    Subd. 2.  [PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL 
ACCESS.] A governmental entity acting under section 49 when it 
is not required to notify the subscriber or customer under 
section 49, subdivision 2, paragraph (a), or to the extent that 
it may delay notice under subdivision 1, may apply to a court 
for an order commanding a provider of electronic communications 
service or remote computing service to whom a warrant, subpoena, 
or court order is directed, for a period as the court considers 
appropriate, not to notify any other person of the existence of 
the warrant, subpoena, or court order.  The court shall enter an 
order if it determines that there is reason to believe that 
notification of the existence of the warrant, subpoena, or court 
order will result in:  
    (1) endangering the life or physical safety of an 
individual;  
    (2) flight from prosecution;  
    (3) destruction of or tampering with evidence;  
    (4) intimidation of potential witnesses; or 
    (5) otherwise seriously jeopardizing an investigation or 
unduly delaying a trial.  
    Sec. 52.  [626A.31] [COST REIMBURSEMENT.] 
    Subdivision 1.  [PAYMENT.] Except as otherwise provided in 
subdivision 3, a governmental entity obtaining the contents of 
communications, records, or other information under sections 48, 
49, and 50 shall pay to the person or entity assembling or 
providing the information a fee for reimbursement for costs that 
are reasonably necessary and that have been directly incurred in 
searching for, assembling, reproducing, or otherwise providing 
the information.  The reimbursable costs must include any costs 
due to necessary disruption of normal operations of the 
electronic communication service or remote computing service in 
which the information may be stored.  
    Subd. 2.  [AMOUNT.] The amount of the fee provided by 
subdivision 1, must be as mutually agreed by the governmental 
entity and the person or entity providing the information, or, 
in the absence of agreement, must be as determined by the court 
that issued the order for production of the information or the 
court before which a criminal prosecution relating to the 
information would be brought, if no court order was issued for 
production of the information.  
    Subd. 3.  [INAPPLICABILITY.] The requirement of subdivision 
1 does not apply with respect to records or other information 
maintained by a communications common carrier that relate to 
telephone toll records and telephone listings obtained under 
section 49.  The court may, however, order a payment as 
described in subdivision 1 if the court determines the 
information required is unusually voluminous in nature or 
otherwise caused an undue burden on the provider. 
    Sec. 53.  [626A.32] [CIVIL ACTION.] 
    Subdivision 1.  [CAUSE OF ACTION.] Except as provided in 
section 49, subdivision 5, a provider of electronic 
communication service, subscriber, or customer aggrieved by a 
violation of this chapter in which the conduct constituting the 
violation is engaged in with a knowing or intentional state of 
mind may, in a civil action, recover from the person or entity 
which engaged in that violation relief as may be appropriate.  
    Subd. 2.  [RELIEF.] In a civil action under this section, 
appropriate relief includes:  
    (1) temporary and other equitable or declaratory relief as 
may be appropriate;  
    (2) damages under subdivision 3; and 
    (3) a reasonable attorney's fee and other litigation costs 
reasonably incurred.  
    Subd. 3.  [DAMAGES.] The court may assess as damages in a 
civil action under this section the sum of the actual damages 
suffered by the plaintiff and any profits made by the violator 
as a result of the violation, but in no case is a person 
entitled to recover to receive less than the sum of $1,000.  
    Subd. 4.  [DEFENSE.] A good faith reliance on:  
    (1) a court warrant or order, a grand jury subpoena, a 
legislative authorization, or a statutory authorization; or 
    (2) a good faith determination that section 626A.02, 
subdivision 3, permitted the conduct complained of; 
is a complete defense to a civil or criminal action brought 
under sections 47 to 55 or any other law.  
    Subd. 5.  [LIMITATION.] A civil action under this section 
may not be commenced later than two years after the date upon 
which the claimant first discovered or had a reasonable 
opportunity to discover the violation.  
    Sec. 54.  [626A.33] [EXCLUSIVITY OF REMEDIES.] 
    The remedies and sanctions described in sections 47 to 55 
are the only judicial remedies and sanctions for 
nonconstitutional violations of sections 47 to 55.  
    Sec. 55.  [626A.34] [DEFINITIONS.] 
    As used in sections 47 to 55, the term "remote computing 
service" means the provision to the public of computer storage 
or processing services by means of an electronic communication 
system.  
    Sec. 56.  [626A.35] [GENERAL PROHIBITION ON PEN REGISTER 
AND TRAP AND TRACE DEVICE USE; EXCEPTION.] 
    Subdivision 1.  [IN GENERAL.] Except as provided in this 
section, no person may install or use a pen register or a trap 
and trace device without first obtaining a court order under 
section 58. 
     Subd. 2.  [EXCEPTION.] The prohibition of subdivision 1 
does not apply with respect to the use of a pen register or a 
trap and trace device by a provider of electronic or wire 
communication service:  
     (1) relating to the operation, maintenance, and testing of 
a wire or electronic communication service or to the protection 
of the rights or property of the provider, or to the protection 
of users of that service from abuse of service or unlawful use 
of service; or 
     (2) to record the fact that a wire or electronic 
communication was initiated or completed in order to protect the 
provider, another provider furnishing service toward the 
completion of the wire communication, or a user of that service, 
from fraudulent, unlawful, or abusive use of service; or 
    (3) where the consent of the user of that service has been 
obtained.  
    Subd. 3.  [PENALTY.] Whoever knowingly violates subdivision 
1 shall be fined not more than $3,000 or imprisoned not more 
than one year, or both.  
    Sec. 57.  [626A.36] [APPLICATION FOR AN ORDER FOR A PEN 
REGISTER OR A TRAP AND TRACE DEVICE.] 
    Subdivision 1.  [APPLICATION.] An investigative or law 
enforcement officer may make application for an order or an 
extension of an order under section 58 authorizing or approving 
the installation and use of a pen register or a trap and trace 
device under sections 56 to 60, in writing under oath or 
equivalent affirmation, to a district court.  
    Subd. 2.  [CONTENTS OF APPLICATION.] An application under 
subdivision 1 must include:  
    (1) the identity of the law enforcement or investigative 
officer making the application and the identity of the law 
enforcement agency conducting the investigation; and 
    (2) a certification by the applicant that the information 
likely to be obtained is relevant to an ongoing criminal 
investigation being conducted by that agency.  
    Sec. 58.  [626A.37] [ISSUANCE OF AN ORDER FOR A PEN 
REGISTER OR A TRAP AND TRACE DEVICE.] 
    Subdivision 1.  [IN GENERAL.] Upon an application made 
under section 57, the court shall enter an ex parte order 
authorizing the installation and use of a pen register or a trap 
and trace device within the jurisdiction of the court if the 
court finds that the law enforcement or investigative officer 
has certified to the court that the information likely to be 
obtained by the installation and use is relevant to an ongoing 
criminal investigation.  
     Subd. 2.  [CONTENTS OF ORDER.] (a) An order issued under 
this section must specify:  
     (1) the identity, if known, of the person to whom is leased 
or in whose name is listed the telephone line to which the pen 
register or trap and trace device is to be attached; 
     (2) the identity, if known, of the person who is the 
subject of the criminal investigation;  
     (3) the number and, if known, physical location of the 
telephone line to which the pen register or trap and trace 
device is to be attached and, in the case of a trap and trace 
device, the geographic limits of the trap and trace order; and 
     (4) a statement of the offense to which the information 
likely to be obtained by the pen register or trap and trace 
device relates. 
    (b) An order issued under this section must direct, upon 
the request of the applicant, the furnishing of information, 
facilities, and technical assistance necessary to accomplish the 
installation of the pen register or trap and trace device under 
section 59. 
     Subd. 3.  [TIME PERIOD AND EXTENSIONS.] (a) An order issued 
under this section must authorize the installation and use of a 
pen register or a trap and trace device for a period not to 
exceed sixty days.  
     (b) Extensions of an order may be granted, but only upon an 
application for an order under section 57 and upon the judicial 
finding required by subdivision 1.  The period of extension must 
be for a period not to exceed sixty days.  
     Subd. 4.  [NONDISCLOSURE OF EXISTENCE OF PEN REGISTER OR A 
TRAP AND TRACE DEVICE.] An order authorizing or approving the 
installation and use of a pen register or a trap and trace 
device must direct that:  
     (1) the order be sealed until otherwise ordered by the 
court; and 
     (2) the person owning or leasing the line to which the pen 
register or a trap and trace device is attached, or who has been 
ordered by the court to provide assistance to the applicant, not 
disclose the existence of the pen register or trap and trace 
device or the existence of the investigation to the listed 
subscriber, or to any other person, unless or until otherwise 
ordered by the court.  
     Sec. 59.  [626A.38] [ASSISTANCE IN INSTALLATION AND USE OF 
A PEN REGISTER OR A TRAP AND TRACE DEVICE.] 
     Subdivision 1.  [PEN REGISTERS.] Upon the request of an 
officer of a law enforcement agency authorized to install and 
use a pen register under sections 56 to 60, a provider of wire 
or electronic communication service, landlord, custodian, or 
other person shall furnish the investigative or law enforcement 
officer immediately with all information, facilities, and 
technical assistance necessary to accomplish the installation of 
the pen register unobtrusively and with a minimum of 
interference with the services that the person so ordered by the 
court accords the party with respect to whom the installation 
and use is to take place, if the assistance is directed by a 
court order as provided in section 58, subdivision 2, paragraph 
(b).  
    Subd. 2.  [TRAP AND TRACE DEVICE.] Upon the request of an 
officer of a law enforcement agency authorized to receive the 
results of a trap and trace device under sections 56 to 60, a 
provider of a wire or electronic communication service, 
landlord, custodian, or other person shall install the device 
immediately on the appropriate line and shall furnish the 
investigative or law enforcement officer all additional 
information, facilities, and technical assistance including 
installation and operation of the device unobtrusively and with 
a minimum of interference with the services that the person so 
ordered by the court accords the party with respect to whom the 
installation and use is to take place, if the installation and 
assistance is directed by a court order as provided in section 
58, subdivision 2, paragraph (b).  Unless otherwise ordered by 
the court, the results of the trap and trace device shall be 
furnished to the officer of a law enforcement agency, designated 
by the court, at reasonable intervals during regular business 
hours for the duration of the order.  
     Subd. 3.  [COMPENSATION.] A provider of a wire or 
electronic communication service, landlord, custodian, or other 
person who furnishes facilities or technical assistance under 
this section must be reasonably compensated for reasonable 
expenses incurred in providing facilities and assistance. 
     Subd. 4.  [NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING 
CERTAIN INFORMATION.] No cause of action lies in any court 
against a provider of a wire or electronic communication 
service, its officers, employees, agents, or other specified 
persons for providing information, facilities, or assistance in 
accordance with the terms of a court order under sections 56 to 
60.  
    Subd. 5.  [DEFENSE.] A good faith reliance on a court 
order, a legislative authorization, or a statutory authorization 
is a complete defense against a civil or criminal action brought 
under sections 56 to 60 or any other law.  
    Sec. 60.  [626A.39] [DEFINITIONS.] 
     Subdivision 1.  [APPLICABILITY.] The terms in this section 
apply to sections 56 to 60.  
     Subd. 2.  [WIRE COMMUNICATION; ELECTRONIC COMMUNICATION; 
ELECTRONIC COMMUNICATION SERVICE.] The terms "wire 
communication," "electronic communication," and "electronic 
communication service" have the meanings set forth for the terms 
in section 626A.01.  
     Subd. 3.  [PEN REGISTER.] "Pen register" means a device 
that records or decodes electronic or other impulses that 
identify the number dialed or otherwise transmitted on the 
telephone line to which the device is attached, but the term 
does not include a device used by a provider or customer of a 
wire or electronic communications service for billing, or 
recording as an incident to billing, for communications services 
provided by the provider or a device used by a provider or 
customer of a wire communication service for cost accounting or 
other like purposes in the ordinary course of its business.  
     Subd. 4.  [TRAP AND TRACE DEVICE.] "Trap and trace device" 
means a device which captures the incoming electronic or other 
impulses that identify the originating number of an instrument 
or device from which a wire or electronic communication was 
transmitted.  
     Sec. 61.  [626A.40] [SUBJECT TO OTHER LAWS.] 
    Nothing in sections 45 to 60 must be considered to 
authorize conduct constituting a violation of any law of the 
United States. 
     Sec. 62.  [REPEALER.] 
    Minnesota Statutes 1986, sections 626A.01, 626A.02, 
626A.03, 626A.04, 626A.05, as amended by Laws 1987, chapters 
217, section 3; 329, section 17; and 384, article 2, section 
112, 626A.06, 626A.07, 626A.08, 626A.09, 626A.10, 626A.11, 
626A.12, 626A.13, 626A.14, 626A.15, 626A.16, 626A.17, 626A.18, 
626A.19, 626A.20, 626A.21, 626A.22, 626A.23, and sections 1 to 
61 are repealed. 
    Sec. 63.  [EFFECTIVE DATE.] 
    Sections 1 to 61 are effective August 1, 1988, and apply to 
crimes committed on or after that date.  Section 62 is effective 
August 1, 1989. 
    Approved April 20, 1988