2003S0555-1 03/10/03
By: Deuell S.B. No. 1411
A BILL TO BE ENTITLED
AN ACT
relating to electronic surveillance.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a) and (c), Section 16.02, Penal
Code, are amended to read as follows:
(a) In this section, "computer trespasser," "covert entry,"
"communication common carrier," "contents," "electronic
communication," "electronic, mechanical, or other device,"
"immediate life-threatening situation," "intercept,"
"investigative or law enforcement officer," "member of a law
enforcement unit specially trained to respond to and deal with
life-threatening situations," "oral communication," "protected
computer," ["electronic communication,"] "readily accessible to
the general public," and "wire communication" have the meanings
given those terms in Article 18.20, Code of Criminal Procedure.
(c) It is an affirmative defense to prosecution under
Subsection (b) that:
(1) an operator of a switchboard or an officer,
employee, or agent of a communication common carrier whose
facilities are used in the transmission of a wire or electronic
communication intercepts a communication or discloses or uses an
intercepted communication in the normal course of employment while
engaged in an activity that is a necessary incident to the rendition
of service or to the protection of the rights or property of the
carrier of the communication, unless the interception results from
the communication common carrier's use of service observing or
random monitoring for purposes other than mechanical or service
quality control checks;
(2) an officer, employee, or agent of a communication
common carrier provides information, facilities, or technical
assistance to an investigative or law enforcement officer who is
authorized as provided by this section [article] to intercept a
wire, oral, or electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if
the person is a party to the communication or if one of the parties
to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if
the person is acting under the authority of Article 18.20, Code of
Criminal Procedure;
(C) a wire or electronic communication, if:
(i) the communication was made by a
computer trespasser and transmitted to, through, or from a
protected computer;
(ii) the interception did not acquire a
communication other than one transmitted to or from the computer
trespasser; and
(iii) the owner of the protected computer
consented to the interception of the computer trespasser's
communications on the protected computer; or
(D) a wire or electronic communication, if the
actor was lawfully engaged in an ongoing criminal investigation and
the actor had reasonable suspicion to believe that the contents of
the computer trespasser's communications likely to be obtained
would be material to the investigation;
(4) a person not acting under color of law intercepts a
wire, oral, or electronic communication, if:
(A) the person is a party to the communication;
or
(B) [if] one of the parties to the communication
has given prior consent to the interception, unless the
communication is intercepted for the purpose of committing an
unlawful [any criminal or tortious act in violation of the
constitution or laws of the United States or of this state or for
the purpose of committing any other injurious] act;
(5) a person acting under color of law intercepts a
wire, oral, or electronic communication if:
(A) oral or written consent for the interception
is given by a magistrate before the interception;
(B) an immediate life-threatening situation
exists;
(C) the person is a member of a law enforcement
unit specially trained to:
(i) respond to and deal with
life-threatening situations; or
(ii) install electronic, mechanical, or
other devices; and
(D) the interception ceases immediately on
termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal
Communications Commission intercepts a communication transmitted
by radio or discloses or uses an intercepted communication in the
normal course of employment and in the discharge of the monitoring
responsibilities exercised by the Federal Communications
Commission in the enforcement of Chapter 5, Title 47, United States
Code;
(7) a person intercepts or obtains access to an
electronic communication that was made through an electronic
communication system that is configured to permit the communication
to be readily accessible to the general public;
(8) a person intercepts radio communication, other
than a cordless telephone communication that is transmitted between
a cordless telephone handset and a base unit, that is transmitted:
(A) by a station for the use of the general
public;
(B) to ships, aircraft, vehicles, or persons in
distress;
(C) by a governmental, law enforcement, civil
defense, private land mobile, or public safety communications
system that is readily accessible to the general public, unless the
radio communication is transmitted by a law enforcement
representative to or from a mobile data terminal;
(D) by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens band,
or general mobile radio services; or
(E) by a marine or aeronautical communications
system;
(9) a person intercepts a wire or electronic
communication the transmission of which causes harmful
interference to a lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source of the
interference;
(10) a user of the same frequency intercepts a radio
communication made through a system that uses frequencies monitored
by individuals engaged in the provision or the use of the system, if
the communication is not scrambled or encrypted; or
(11) a provider of electronic communications service
records the fact that a wire or electronic communication was
initiated or completed in order to protect the provider, another
provider furnishing service towards the completion of the
communication, or a user of that service from fraudulent, unlawful,
or abusive use of the service.
SECTION 2. Section 1, Article 18.20, Code of Criminal
Procedure, is amended by amending Subdivisions (14) and (22) and
adding Subdivisions (24), (25), and (26) to read as follows:
(14) "Pen register," "ESN reader," "trap and trace
device," and "mobile tracking device" have the meanings assigned by
Article 18.21 [means a device that attaches to a telephone line and
records or decodes electronic or other impulses to identify numbers
dialed or otherwise transmitted on the telephone line. The term
does not include a device used by a provider or customer of:
[(A) a wire or electronic communication service
for purposes of charging a fee for the service; or
[(B) a wire communication service during the
ordinary course of the provider's or customer's business, including
cost accounting and security control].
(22) "Immediate life-threatening situation" means a
hostage, barricade, or other [similar] emergency situation in which
a person unlawfully and [human life is] directly:
(A) threatens another with death; or
(B) exposes another to a substantial risk of
serious bodily injury [threatened].
(24) "Access," "computer," "computer network,"
"computer system," and "effective consent" have the meanings
assigned by Section 33.01, Penal Code.
(25) "Computer trespasser" means a person who:
(A) is accessing a protected computer without
effective consent of the owner; and
(B) has no reasonable expectation of privacy in
any communication transmitted to, through, or from the protected
computer.
(26) "Protected computer" means a computer, computer
network, or computer system that is:
(A) owned by a financial institution or
governmental entity; or
(B) used by or for a financial institution or
governmental entity and conduct constituting an offense affects
that use.
SECTION 3. Section 4, Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED.
A judge of competent jurisdiction may issue an order authorizing
interception of wire, oral, or electronic communications only if
the prosecutor applying for the order shows probable cause to
believe that the interception will provide evidence of the
commission of:
(1) a felony under Section 19.03(a)(3) or Section
43.26, Penal Code;
(2) a felony under:
(A) Chapter 481, Health and Safety Code, other
than felony possession of marihuana;
(B) Section 485.033, Health and Safety Code; or
(C) Chapter 483, Health and Safety Code; or
(3) an attempt, conspiracy, or solicitation to commit
an offense listed in this section.
SECTION 4. Subsection (a), Section 7, Article 18.20, Code
of Criminal Procedure, is amended to read as follows:
(a) An investigative or law enforcement officer who, by any
means authorized by this article, obtains knowledge of the contents
of a wire, oral, or electronic communication or evidence derived
from the communication may disclose the contents or evidence to
another investigative or law enforcement officer, including a
federal law enforcement officer or agent or a law enforcement
officer or agent of another state, to the extent that the disclosure
is appropriate to the proper performance of the official duties of
the officer making or receiving the disclosure.
SECTION 5. Section 8A, Article 18.20, Code of Criminal
Procedure, is amended by amending Subsections (b), (c), and (e) and
adding Subsection (g) to read as follows:
(b) A peace officer designated under Subsection (a) or under
Section 5(b) may possess, install, operate, or monitor an
electronic, mechanical, or other device to intercept wire, oral, or
electronic communications if the officer:
(1) reasonably believes an immediate life-threatening
situation exists that:
(A) is within the territorial jurisdiction of the
officer or another officer the officer is assisting; and
(B) requires interception of communications
before an order authorizing the interception can, with due
diligence, be obtained under this section;
(2) reasonably believes there are sufficient grounds
under this section on which to obtain an order authorizing the
interception; and
(3) obtains [from a magistrate] oral or written
consent to the interception before beginning the interception from:
(A) a district judge for the county in which the
device will be installed or used; or
(B) a judge or justice of a court of appeals or of
a higher court.
(c) An official [A magistrate] described in Subsection
(b)(3) may give oral or written consent to the interception of
communications under this section to provide evidence of the
commission of a felony, or of a threat, attempt, or conspiracy to
commit a felony, in an immediate life-threatening situation. Oral
or written consent given under this section expires 48 hours after
the grant of consent or at the conclusion of the emergency
justifying the interception, whichever occurs first.
(e) A judge of competent jurisdiction under Section 3 or
under Subsection (b) may issue a written [an] order authorizing
interception of communications under this section during the
48-hour period prescribed by Subsection (d)(2). A written order
under this section expires on the 30th day after execution of the
order or at the conclusion of the emergency that initially
justified the interception, whichever occurs first. If an order is
denied or is not issued within the 48-hour period, the officer shall
terminate use of and remove the device promptly on the earlier of:
(1) the denial;
(2) the end of the emergency that initially justified
the interception; or
(3) the expiration of 48 hours.
(g) A peace officer may certify to a communications common
carrier that the officer is acting lawfully under this section.
SECTION 6. Subsection (c), Section 9, Article 18.20, Code
of Criminal Procedure, is amended to read as follows:
(c) On request of the applicant for an order authorizing the
interception of a wire, oral, or electronic communication, the
judge may issue a separate order directing that a provider of wire
or electronic communications service, a communication common
carrier, landlord, custodian, or other person furnish the applicant
all information, facilities, and technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of
interference with the services that the provider, carrier,
landlord, custodian, or other person is providing the person whose
communications are to be intercepted. Any provider of wire or
electronic communications service, communication common carrier,
landlord, custodian, or other person furnishing facilities or
technical assistance under this subsection is entitled to
compensation by the applicant for reasonable expenses incurred in
providing the facilities or assistance at the prevailing rates.
The applicant may request a hearing to determine the reasonableness
of an expense claimed under this subsection. The interception
order may include an order to:
(1) install or use a pen register, ESN reader, trap and
trace device, or mobile tracking device, or similar equipment that
combines the function of a pen register and trap and trace device;
(2) disclose a stored communication, information
subject to an administrative subpoena, or information subject to
access under Article 18.21, Code of Criminal Procedure.
SECTION 7. Section 16, Article 18.20, Code of Criminal
Procedure, is amended by adding Subsection (g) to read as follows:
(g) A computer trespasser or a user, aggrieved person,
subscriber, or customer of a communications common carrier or
electronic communications service does not have a cause of action
against the carrier or service, its officers, employees, or agents,
or other specified persons for providing information, facilities,
or assistance as required by:
(1) legislative authority; or
(2) a court order, warrant, subpoena, or certification
under this article.
SECTION 8. Section 1, Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. DEFINITIONS. In this article:
(1) "Aural transfer," "communication common carrier,"
"computer trespasser," "electronic communication," "electronic
communications service," "electronic communications system,"
"electronic storage," "immediate life-threatening situation,"
"member of a law enforcement unit specially trained to respond to
and deal with life-threatening situations," ["pen register,"]
"readily accessible to the general public," "user," and "wire
communication" have the meanings assigned by Article 18.20.
(2) "Authorized peace officer" means:
(A) a sheriff or a sheriff's deputy;
(B) a constable or deputy constable;
(C) a marshal or police officer of an
incorporated city[, town, or village];
(D) a ranger or officer commissioned by the Public
Safety Commission or the director of the Department of Public
Safety;
(E) an investigator of a prosecutor's [the
district attorney's, criminal district attorney's, or county
attorney's] office;
(F) a law enforcement agent of the Alcoholic
Beverage Commission;
(G) a law enforcement officer commissioned by the
Parks and Wildlife Commission; or
(H) an enforcement officer appointed by the
executive director of [employed by] the Texas Department of
Criminal Justice under [pursuant to] Section 493.019, Government
Code.
(3) "Department" means the Department of Public
Safety.
(4) "ESN reader" means a device that records the
electronic serial number from the data track of a wireless
telephone, cellular telephone, or similar communication device
that transmits its operational status to a base site, if the device
does not intercept the contents of a communication.
(5) "Mobile tracking device" means an electronic or
mechanical device that permits tracking the movement of a person,
vehicle, container, item, or object. The term does not include a
device designed, made, adapted, or capable of:
(A) intercepting the content of a communication;
or
(B) functioning as a pen register, ESN reader,
trap and trace device, or similar equipment.
(6) "Pen register" means a device that records or
decodes dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a wire or
electronic communication is transmitted, if the information does
not include the contents of the communication. The term does not
include a device used by a provider or customer of a wire or
electronic communication service for purposes of:
(A) billing or recording as an incident to
billing for communications services; or
(B) cost accounting, security control, or other
similar purpose in the ordinary course of the provider's or
customer's business.
(7) "Prosecutor" means a district attorney, criminal
district attorney, or county attorney performing the duties of a
district attorney.
(8) "Remote computing service" means the provision to
the public of computer storage or processing services by means of an
electronic communications system.
(9) [(5)] "Supervisory official" means:
(A) an investigative agent or an assistant
investigative agent who is in charge of an investigation;
(B) an equivalent person at an investigating
agency's headquarters or regional office; and
(C) the principal prosecuting attorney of the
state or of a political subdivision of the state or the first
assistant or chief assistant prosecuting attorney in the office of
either.
(10) [(6) "Tracking device" means an electronic or
mechanical device that permits only tracking the movement of a
person or object.
[(7)] "Trap and trace device" means a device that
records an incoming electronic or other impulse that identifies the
originating number or other dialing, routing, addressing, or
signaling information reasonably likely to identify the source of
[an instrument or device from which] a wire or electronic
communication, if the information does not include the contents of
the communication [was transmitted]. The term does not include a
device or telecommunications network used in providing:
(A) a caller identification service authorized
by the Public Utility Commission of Texas under Subchapter E,
Chapter 55, Utilities Code;
(B) the services referenced in Section
55.102(b), Utilities Code; or
(C) a caller identification service provided by a
commercial mobile radio service provider licensed by the Federal
Communications Commission.
[(8) "ESN reader" means a device that records the
electronic serial number from the data track of a wireless
telephone, cellular telephone, or similar communication device
that transmits its operational status to a base site.
[(9) "Prosecutor" means a district attorney, criminal
district attorney, or county attorney performing the duties of a
district attorney.]
SECTION 9. Subsections (b) and (c), Section 2, Article
18.21, Code of Criminal Procedure, are amended to read as follows:
(b) A prosecutor may file an application under this section
or under federal law on the prosecutor's own motion or on the
request of an authorized peace officer, regardless of whether the
officer is commissioned by the department. A prosecutor who files
an application on the prosecutor's own motion or who files an
application for the installation and use of a pen register, ESN
reader, or similar equipment on the request of an authorized peace
officer not commissioned by the department must make the
application personally and may not do so through an assistant or
some other person acting on the prosecutor's behalf. A prosecutor
may make an application through an assistant or other person acting
on the prosecutor's behalf if the prosecutor files an application
for the installation and use of:
(1) a pen register, ESN reader, or similar equipment
on the request of an authorized peace officer who is commissioned by
the department; or
(2) a trap and trace device or similar equipment on the
request of an authorized peace officer, regardless of whether the
officer is commissioned by the department.
(c) The application must:
(1) be made in writing under oath;
(2) include the name of the subscriber and the
telephone number and location of the communication device on which
the pen register, ESN reader, trap and trace device, or similar
equipment will be used, to the extent that information is known or
is reasonably ascertainable; and
(3) state that the installation and use of the device
or equipment will likely produce information that is [be] material
to an ongoing criminal [the] investigation [of a criminal offense].
SECTION 10. Subsections (a) through (f), Section 14,
Article 18.21, Code of Criminal Procedure, are amended to read as
follows:
(a) A district judge may issue an order for the installation
and use within the judge's judicial district of a [one or more]
mobile tracking device [devices and for their use].
(b) The order may authorize the use of a mobile tracking
device [devices] outside the judicial district but within the
state, if the device is installed within the district.
(c) A district judge may issue the order only on the
application of an authorized peace officer. An application must be
written and signed and sworn to or affirmed before the judge. The
affidavit must:
(1) state the name, department, agency, and address of
the applicant;
(2) identify the vehicle, container, or item to which,
in which, or on which the mobile tracking device is to be attached,
[or] placed, or otherwise installed;
(3) [and] state the name of the owner or possessor of
the [that] vehicle, container, or item described in Subdivision
(2);
(4) [(3)] state the judicial jurisdictional area in
which the vehicle, container, or item described in Subdivision (2)
is expected to be found; and
(5) [(4)] state the facts and circumstances that
provide the applicant with a reasonable suspicion that:
(A) criminal activity has been, is, or will be
committed; [in progress] and
(B) [that] the installation and use of a mobile
tracking device is [reasonably] likely to produce [yield]
information that is material [relevant] to an ongoing criminal
[the] investigation of the [that] criminal activity described in
Paragraph (A).
(d) Within [The judge that issued an order shall be notified
in writing within] 72 hours after the time the mobile tracking
device was [has been] activated in place on or within the vehicle,
container, or item, the applicant shall notify in writing the judge
who issued an order under this section.
(e) An order under this section [authorizing the use of a
mobile tracking device] expires not later than the 90th day after
the date that the device has been activated in place on or within
the vehicle, container, or item. For good cause shown, the judge
may grant an extension for an additional 90-day period.
(f) The applicant shall remove or cause to be removed a [A]
mobile tracking device [shall be removed] as soon as is practicable
after the authorization period expires. If removal is not
practicable, monitoring of the device shall cease on expiration of
the authorization order.
SECTION 11. Section 16, Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
Sec. 16. LIMITATION. A governmental agency authorized to
install and use a pen register under this article or other law must
use reasonably available technology to only record and decode
electronic or other impulses used to identify the numbers dialed,
routed, addressed, or otherwise processed or transmitted by a wire
or electronic communication so as to not include the contents of the
communication.
SECTION 12. This Act takes effect September 1, 2003.
SECTION 13. (a) The changes in law made by this Act by
amending Subsections (a) and (c), Section 16.02, Penal Code, apply
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 14. The changes in law made by this Act by amending
Section 4, Subsection (e), Section 8A, and Section 9, Article
18.20, and Section 14, Article 18.21, Code of Criminal Procedure,
apply only to an interception order granted on or after the
effective date of this Act. An interception order granted before
the effective date of this Act is covered by the law in effect when
the order was granted, and the former law is continued in effect for
that purpose.
SECTION 15. The changes in law made by this Act by amending
Subsections (b) and (c), Section 8A, Article 18.20, Code of
Criminal Procedure, apply only to a request for oral or written
consent made on or after the effective date of this Act. A request
for oral or written consent made before the effective date of this
Act is covered by the law in effect when the order was granted, and
the former law is continued in effect for that purpose.