BILL ANALYSIS S.B. 1319 By: Armbrister Economic Development 04-27-95 Committee Report (Unamended) BACKGROUND Articles 18.20 and 18.21 of the Code of Criminal Procedure are out of step with amendments to the federal Communications Assistance for Law Enforcement Act. PURPOSE As proposed, S.B. 1319 changes state law communication law to conform with current federal law. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 1(1), (14), (15), and (19), Article 18.20, Code of Criminal Procedure, to redefine "wire communication," "pen register," "electronic communication," and "readily accessible to the general public." SECTION 2. Amends Section 16, Article 18.20, Code of Criminal Procedure, as follows: Sec. 16. RECOVERY OF CIVIL DAMAGES AUTHORIZED. (a) Provides that a person whose wire, oral, or electronic communication is intercepted, disclosed, or used (intercepted) in violation of this article or Chapter 16, Penal Code, has a civil cause of action against any person who has intercepted the communication or solicited another to intercept the communication, rather than having a civil cause of action against any person who intercepts or procures another person to perform those acts. Sets forth the damages and costs the person whose communication was intercepted is entitled to recover from the person who intercepted the communication. (b) Provides that a good faith reliance on a court order or legislative authorization constitutes a complete defense to an action, rather than any civil or criminal action, brought under this section, instead of under this article. (c) Requires a person to be subject to a suit by the federal or state government in a court of competent jurisdiction for injunctive relief if the person's conduct would constitute an offense under Section 16.05(b), Penal Code, that is not for tortious, criminal, or other illegal purpose or for the purpose of direct or indirect commercial advantage or private commercial gain; and involves certain radio communications. (d) Requires the court to impose a civil penalty of $500 in addition to granting injunctive relief if it is found in the civil suit trial that the defendant has been previously convicted under Section 16.05(b), Penal Code, or has previously been found liable in a civil action under Subsection (c). (e) Authorizes a court to enforce an injunction issued under this section, including a fine for contempt of court. Prohibits a fine under this subsection from being less than $500 for each violation of the injunction. SECTION 3. Amends Section 17, Article 18.20, Code of Criminal Procedure, to provide that this article does not apply to conduct described in an affirmative defense under Section 16.02, Penal Code, rather than Section 16.02(c)(5), Penal Code. Deletes language providing exceptions to the application of Section 16, Penal Code. SECTION 4. Amends Section 1, Article 18.21, Code of Criminal Procedure, to redefine "aural transfer," "communication common carrier," electronic communication," "electronic communications service," "electronic communications system," "electronic storage," "pen register," "readily accessible to the general public," "user," "communications common carrier," and "trap and trace device." Deletes the definition of "wire communication." Redesignates existing Subdivisions (11)-(14) as Subdivisions (5)-(8). SECTION 5. Amends Section 3, Article 18.21, Code of Criminal Procedure, as follows: Sec. 3. EMERGENCY PEN REGISTER AND TRAP AND TRACE INSTALLATION. (a) Provides that an authorized peace officer designated by a district or criminal attorney, rather than one designated by the director of the Department of Public Safety, may install a pen register or trap and trace device (device). (b) Requires the peace officer to apply for and obtain an order approving installation and use of a device within 48 hours after initiating the installation, rather than within 48 hours after installation occurred. Makes nonsubstantive changes. (c) Deletes existing Subsection (c) providing that the unauthorized use of a device is not an exception to the application of Section 16.03, Penal Code. Redesignates existing Subsection (d) prohibiting the state from using as evidence in a criminal proceeding any information gained through the use of a device installed, rather than issued, under this section if authorization has been denied. SECTION 6. Amends Article 18.21, Code of Criminal Procedure, by adding Section 16, as follows: Sec. 16. LIMITATION. Requires a government agency authorized to install and use a pen register under this chapter or under any other law to use reasonably available technology to restrict the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing. SECTION 7. Amends Section 16.02(c), Penal Code, to provide that it is an affirmative defense to prosecution under Subsection (b) that a person acting under color of law intercepts a wire, oral, or electronic communication if prior oral or written consent for the interception has been given by the magistrate; or a person intercepts certain radio communications, other than a cordless telephone communication transmitted between the cordless telephone handset and base unit, among others. SECTION 8. Amends Section 16.03, Penal Code, as follows: Sec. 16.03. UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE DEVICE. (a) Provides that a person commits an offense if the person intentionally or knowingly installs or uses a device, rather than installs or uses a device to record telephone numbers dialed from or to a telephone instrument. Deletes language providing an exception. (b) Makes no change. (c) Provides that it is an affirmative defense to prosecution that the installation or use was made, among others, by an officer, employee, or agent of a communications common carrier to assist another whom the person reasonably believed to have been an authorized peace officer acting lawfully under Article 18.21, Code of Criminal Procedure; by an officer, employee, or agent of lawful enterprise while engaging in certain activities; or by a person acting in compliance with the emergency provisions of Article 18.21, Code of Criminal Procedure, under a court order obtained under that article. Deletes language providing exceptions to the application of Subsection (a). Makes nonsubstantive changes. (d) Redesignates existing Subsection (e). SECTION 9. Amends Section 16.04(e), Penal Code, to provide that it is an affirmative defense to prosecution under, rather than an exception to the application of, Subsection (b) that conduct was authorized by the addressee or intended recipient of the wire or electronic communication, among others. Redesignates existing Subdivision (3) as Subdivision (4). SECTION 10. Amends Section 16.05, Penal Code, as follows: Sec. 16.05. ILLEGAL DIVULGENCE OF PUBLIC COMMUNICATIONS. (a) Defines "intended recipient." Makes a nonsubstantive change. (b) Provides that a person who provides electronic communications service to the public commits an offense if, while an electronic communication is in transmission on that service, the person intentionally or knowingly divulges the contents of the communication to another who is not the intended recipient of the communication, rather than to other than certain alternative recipients. Deletes language providing that Subsection (c) is an exception. Makes nonsubstantive changes. (c) Provides that it is an affirmative defense to prosecution under Subsection (b) that the actor divulged the contents of the communication as authorized by federal law; to another to forward the communication to its destination and the other was an employee, an authorized agent, or a person in control of the facility used to forward the communication; to a law enforcement agency if the contents appear to contain information relating to the commission of a crime. Deletes language authorizing a person who provides electronic communications service to the public to divulge the contents of a communication. (d) Provides that an offense under this section involving a scrambled or encrypted radio communication is a state jail felony. Deletes language providing Subsections (e) and (f) as an exception to an offense under Subsection (b) that is a state jail felony. (e) Provides that an offense under this section that does not involve scrambled or encrypted radio communication and that is committed unlawfully or to gain a benefit is a Class A misdemeanor if the communication is not a public land mobile radio service communication or a paging service communication; or a Class C misdemeanor if the communication is a public land mobile radio service communication or a paging service communication. Deletes language providing that an offense under Subsection (b) involving certain radio communications is a Class A or Class C misdemeanor. Deletes Subsection (f) requiring a person who commits certain offenses under Subsection (b) to be subject to a suit by a federal or state government in a court for appropriate injunctive relief. SECTION 11. Effective date: September 1, 1995. SECTION 12. Makes application of this Act prospective. SECTION 13. Emergency clause. Effective date: upon passage.