Digital Contents Warrants Exposed

Model Bill Info
Bill Title	Model Act for Digital Contents Warrants
Date Introduced	June 10, 2016
Date Finalized	September 12, 2016
Date Accessed	April 27, 2018
Type	Model Policy
Status	Final
Task Forces	Communications and Technology
Keywords	Privacy, Electronic Communication, Email, Searches, Warrants

Summary

The bill provides that a governmental entity may only require an electronic communication service provider to disclose the contents of an electronic communication pursuant to a valid search warrant. The warrant must include a finding of probable cause that a crime has been committed and that evidence will be found in the electronic communication. It also requires the governmental entity to give the subscriber notice of the search warrant and the disclosure unless the court orders that the notice need not be given due to specified circumstances. The bill prohibits any evidence obtained in violation of the bill from being introduced as evidence or used to obtain a search warrant or court order.

Model Act for Digital Contents Warrants

Section 1 – Search warrant for content of electronic communications

• Definitions. As used in this section, unless the context otherwise requires:
  • “Contents”, when used with respect to any electronic communication includes any information concerning the substance, purport, or meaning of that communication.
  • “Electronic Communication” means as that term is defined in 18 USC 2510(12).
  • “Wire Communications” means as that term is defined in 18 USC 2510(1).
  • “Electronic Communication Service” means as that term is defined in 18 USC 2510(15).
  • “Remote Computing Service” means as that term is defined in 18 USC 2711(2).
  • “Governmental Entity” means as that term is defined in 18 USC 2711(4).
• Search Warrant Required for Content. A governmental entity may require disclosure by a provider of an electronic communication service or remote computing service of the contents of an electronic communication or wire communication stored, held, or maintained by that service only pursuant to a valid search warrant. The search warrant must be issued by a court of competent jurisdiction using the procedures described in the State warrant procedures. No warrant shall issue unless the court finds, based on sworn affidavit, that there is probable cause to search for and seize the electronic or wire communications.
• Except as provided in subsection (4) of this section, not later than when the governmental entity serves a warrant for the disclosure of the contents of an electronic communication of a subscriber or customer from a provider of an electronic communication service or remote computing service under subsection (2) of this section, the entity shall serve upon, or deliver to by registered or first­class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the warrant the subscriber or customer:
  • a copy of the warrant;
  • a notice that informs the subscriber or customer:
    • of the nature of the inquiry with reasonable specificity;
    • that information maintained for the subscriber or customer by the provider of an electronic communication service or remote computing service named in the process or request was requested by, the governmental entity; and
    • the date on which the warrant was served on the provider.
  • Exception to Warrant Notice Requirement.
    • a governmental entity that is seeking a warrant under subsection (2) of this section may include in the application for the warrant a request for an order:
      • that the governmental entity not be required to give the notification required by Subsection (3) of this section for the period of time that the court finds there is reason to believe that the notification may have an adverse result described in section (b) herein, but not to exceed 90 days; and
      • directing the provider of an electronic communication service to which a warrant under subsection (2) of this section is directed not to notify any other person, except to obtain the advice of counsel, of the warrant for the period of time that the court finds there is reason to believe that the notification may have an adverse result described in section (b) herein, but not to exceed 90 days.
    • a court shall grant the request for an order under paragraph (a) of this subsection (4) if the court determines that there is reason to believe that notification of the existence of the warrant may result in:
      • endangering the life or physical safety of an individual;
      • flight from prosecution;
      • destruction of or tampering with evidence;
      • intimidation of potential witnesses; or
      • otherwise seriously jeopardizing an investigation or unduly delaying a trial.
    • a court may grant extensions of the delayed notice in paragraph (a) of this subsection (4) up to 90 days each on the same grounds as provided in paragraph (a) of this subsection (4).
  • Rules of Construction. Except as otherwise provided in this section, this section does not limit:
    • an electronic communication service or other party from disclosing information about a request issued by a governmental entity for electronic communications;
    • the authority of a governmental entity to use a subpoena authorized under the laws of this state, or to use a grand jury or trial subpoena, to require an entity that provides an electronic communication service for the purpose of carrying out their duties to its own officers, directors, employees, or agents of the entity to disclose to a governmental entity the contents of an electronic communication to or from an officer, director, employee, or agent of the entity, if the electronic communication is held, stored, or maintained on an electronic communications system owned or operated by the entity; or
    • a governmental entity’s ability to use, maintain, or store information on its own electronic communication service or to disseminate information stored on its own electronic communication service.
  • Violations.
    • Except as proof of a violation of this section, evidence obtained in violation of this section is not admissible in a civil, criminal, or administrative proceeding and may not be used in an affidavit in an effort to obtain a search warrant.
    • The attorney general may apply to a court for an injunction or commence a civil action against any governmental entity to compel compliance with the terms of this section.
  • Standing. Providers of electronic communication services and remote computing services subject to legal process under this section have standing to challenge a warrant or other legal process that is inconsistent with this section, any other statute or law, or the state or federal constitution, or on the grounds that the legal process is unduly burdensome.
  • Immunity. No cause of action shall lie against a provider of an electronic communication service or remote computing service, its officers, employees, or agents, for providing information or assistance in accordance with the terms of the legal process issued under this section, or in objecting in good faith to such legal process. A provider of an electronic communication service or remote computing service, its officers, employees, or agents, are immune from all civil, criminal, or administrative liability for providing information or assistance in accordance with the terms of the legal process issued under this section, or in objecting in good faith to such legal process.
  • Voluntary Disclosure of Electronic Communication. Nothing in this section shall be construed to prohibit a provider from disclosing the contents of an electronic or wire communication to a governmental entity pursuant to 18 U.S.C. 2702(b).

Section 2 – Search warrants – issuance – grounds.

EXCEPT AS PROVIDED IN [Insert Section of State Law], a search warrant may be issued under this section to search for and seize any property:

Section 3 – Court orders for the production of records – definitions.

EXCEPT AS PROVIDED IN [Insert Section of State Law], a court may order the production of records under this section to require the production of records in the actual or constructive control of a business entity.

Section 4 – Act subject to petition – effective date

This act takes effect at 12:01 a.m. on the day following the expiration of the ninety­-day period after final adjournment of the general assembly ([insert date]). [Or insert other State specific effective date provisions.]