BILL ANALYSIS

C.S.H.B. 2268

By: Frullo

Criminal Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Internet communications companies often hold information and data that may be vital in the prosecution of an offense, particularly Internet crimes. To obtain a search warrant for electronic communications, law enforcement officers must apply for a local search warrant in an Internet company's jurisdiction, which is often located in a different state than the state in which the communications are held by a service provider. Interested parties contend that this limitation hampers law enforcement efforts to obtain evidence on Internet criminals, who are able to remove or change identifying data much faster than law enforcement can obtain warrants. In response to this problem, several states have enacted laws providing for the issuance of computer data warrants that address out-of-state jurisdiction when dealing with Internet data. In an effort to bring Texas laws regarding electronic data search warrants in line with other states and allow Texas to serve such warrants directly to out-of-state companies, C.S.H.B. 2268 seeks to provide for the issuance of a search warrant for certain electronic information, regardless of whether the data or information is held at a location in Texas or in another state.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 2268 amends the Code of Criminal Procedure to authorize a district judge to issue a search warrant for electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage, by a provider of an electronic communications service or a provider of a remote computing service, regardless of whether the customer data is held at a location in Texas or at a location in another state. The bill requires an application for such a warrant to demonstrate probable cause for the issuance of the warrant and to be supported by the oath or affirmation of an authorized peace officer. The bill prohibits the issuance of such a warrant unless the required sworn affidavit sets forth sufficient and substantial facts to establish probable cause that a specific offense has been committed and the electronic customer data sought constitutes evidence of that offense or evidence that a particular person committed that offense and is held in electronic storage by the service provider on which the warrant is served. The bill limits the data that may be seized under the warrant to the electronic customer data described in the sworn affidavit, requires such a warrant to run in the name of "The State of Texas," and provides for such a warrant to be sealed.

C.S.H.B. 2268 requires the peace officer to execute the warrant not later than the 11th day after the date of issuance, unless directed in the warrant by the district judge to execute the warrant within a shorter period. The bill authorizes such a warrant to be served only on a service provider that is a domestic entity or a company or entity otherwise doing business in Texas under a contract or a terms of service agreement with a Texas resident, if any part of that contract or agreement is to be performed in Texas. The bill requires the service provider to produce all electronic customer data, contents of communications, and other information sought, regardless of where the information is held and within the period allowed for compliance with the warrant. The bill authorizes a court to find any officer, director, or owner of a company or entity in contempt of court if the person by act or omission is responsible for the failure of the company or entity to comply with the warrant within the period allowed for compliance and establishes that the failure of a company or entity to timely deliver the information sought in the warrant does not affect the admissibility of that evidence in a criminal proceeding. The bill establishes that the warrant is served when the authorized peace officer delivers the warrant by hand, by facsimile transmission, or, in a manner allowing proof of delivery, by means of the United States mail or a private delivery service to a person considered an agent of the entity for service of process, notice, or demand as a matter of law, to the secretary of state if the secretary of state is acting as the entity's agent, or to any other person or entity designated to receive the service of process.

C.S.H.B. 2268 requires a district judge to indicate in the warrant that the deadline for compliance by the provider of an electronic communications service or the provider of a remote computing service is the 15th business day after the date the warrant is served if the warrant is to be served on a domestic entity or a company or entity otherwise doing business in Texas. The bill authorizes the extension of the deadline for compliance with a warrant served to the secretary of state acting as an entity's agent to a date that is not later than the 30th day after the date the warrant is served. The bill authorizes the judge to indicate in a warrant that the deadline for compliance is earlier than the 15th business day after the date the warrant is served if the officer makes a showing and the judge finds that failure to comply with the warrant by the earlier deadline would cause serious jeopardy to an investigation or undue delay of a trial or create a risk of danger to the life or physical safety of any person, a risk of flight from prosecution, a risk of the tampering with or destruction of evidence, or a risk of intimidation of potential witnesses. The bill requires the provider of an electronic communications service or remote computing service responding to such a warrant to verify the authenticity of the customer data, contents of communications, and other information produced in compliance with the warrant by including with the information an affidavit that is given by a person who is a custodian of the information or a person otherwise qualified to attest to its authenticity and that states that the information was stored in the course of regularly conducted business of the provider and specifies whether it is the regular practice of the provider to store that information.

C.S.H.B. 2268 requires an authorized peace officer, on a service provider's compliance with such a warrant, to file a return of the warrant and a copy of the inventory of the seized property as required by statutory provisions relating to search warrant returns. The bill requires the district judge to hear and decide any motion to quash the warrant not later than the fifth business day after the date the service provider files the motion and authorizes the judge to allow the service provider to appear at the hearing by teleconference. The bill requires any domestic entity that provides electronic communications services or remote computing services to the public to comply with a warrant issued in another state and seeking information held in electronic storage if the warrant is served on the entity in a manner equivalent to the service of process requirements provided by the bill's provisions. The bill specifies that a search warrant required to be obtained under statutory provisions relating to a warrant for government access to stored communications is a search warrant issued under the bill's provisions.

C.S.H.B. 2268 redefines "electronic storage" to mean any storage of electronic customer data in a computer, computer network, or computer system, regardless of whether the data is subject to recall, further manipulation, deletion, or transmission, including any storage of a wire or electronic communication by an electronic communications service or a remote computing service, rather than a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication or storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication. The bill defines "electronic customer data" to mean data or records that are acquired by or stored with the provider of an electronic communications service or a remote computing service and contain information revealing the identity of customers of the applicable service, information about a customer's use of the applicable service, information that identifies the recipient or destination of a wire communication or electronic communication sent to or by the customer, the content of a wire communication or electronic communication sent to or by the customer, and any data stored by or on behalf of the customer with the applicable service provider.

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2013.

COMPARISON OF ORIGINAL AND SUBSTITUTE

While C.S.H.B. 2268 may differ from the original in minor or nonsubstantive ways, the following comparison is organized and highlighted in a manner that indicates the substantial differences between the introduced and committee substitute versions of the bill.

INTRODUCED

HOUSE COMMITTEE SUBSTITUTE

SECTION 1. Article 18.02, Code of Criminal Procedure, is amended to read as follows:

Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;

(3) arms and munitions kept or prepared for the purposes of insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;

(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

(11) persons; [or]

(12) contraband subject to forfeiture under Chapter 59 of this code; or

(13) electronic customer data held in electronic storage or the contents of and records and other information related to a wire communication or electronic communication held in electronic storage.

(b) For purposes of Subsection (a)(13), "electronic communication," "electronic storage," and "wire communication" have the meanings assigned by Article 18.20, and "electronic customer data" has the meaning assigned by Article 18.21.

SECTION 1. Article 18.02, Code of Criminal Procedure, is amended to read as follows:

Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;

(3) arms and munitions kept or prepared for the purposes of insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

(11) persons; [or]

(12) contraband subject to forfeiture under Chapter 59 of this code; or

(13) electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage.

SECTION 2. Article 18.06(a), Code of Criminal Procedure, is amended to read as follows:

(a) A peace officer to whom a search warrant is delivered shall execute the warrant [it] without delay and forthwith return the warrant [it] to the proper magistrate. A search warrant issued under Section 5A, Article 18.21, must be executed in the manner provided by that section not later than the 10th day after the date of issuance. In all other cases, a search warrant [It] must be executed within three days from the time of its issuance. A warrant issued under this chapter [~~, and~~] shall be executed within a shorter period if so directed in the warrant by the magistrate.

SECTION 2. Article 18.06(a), Code of Criminal Procedure, is amended to read as follows:

(a) A peace officer to whom a search warrant is delivered shall execute the warrant [it] without delay and forthwith return the warrant [it] to the proper magistrate. A search warrant issued under Section 5A, Article 18.21, must be executed in the manner provided by that section not later than the 11th day after the date of issuance. In all other cases, a search warrant [It] must be executed within three days from the time of its issuance. A warrant issued under this chapter [~~, and~~] shall be executed within a shorter period if so directed in the warrant by the magistrate.

SECTION 3. Article 18.07(a), Code of Criminal Procedure, is amended.

SECTION 3. Same as introduced version.

No equivalent provision.

SECTION 4. Section 1(20), Article 18.20, Code of Criminal Procedure, is amended to read as follows:

(20) "Electronic storage" means any storage of electronic customer data in a computer, computer network, or computer system, regardless of whether the data is subject to recall, further manipulation, deletion, or transmission, and includes any[:

[~~(A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or~~

[~~(B)~~] storage of a wire or electronic communication by an electronic communications service or a remote computing service [~~for purposes of backup protection of the communication~~].

SECTION 4. Section 1, Article 18.21, Code of Criminal Procedure, is amended.

SECTION 5. Same as introduced version.

SECTION 5. Sections 4(a), (b), (c), (d), and (e), Article 18.21, Code of Criminal Procedure, are amended to read as follows:

(a) An authorized peace officer may require a provider of electronic communications service to disclose the contents of a wire communication or an electronic communication that has been in electronic storage for not longer than 180 days by obtaining a warrant under Section 5A.

(b) An authorized peace officer may require a provider of electronic communications service to disclose the contents of a wire communication or an electronic communication that has been in electronic storage for longer than 180 days:

(1) if notice is not being given to the subscriber or customer, by obtaining a warrant under Section 5A;

(2) if notice is being given to the subscriber or customer, by obtaining:

(A) an administrative subpoena authorized by statute;

(B) a grand jury subpoena; or

(3) as otherwise permitted by applicable federal law.

(c)(1) An authorized peace officer may require a provider of a remote computing service to disclose the contents of a wire communication or an electronic communication as described in Subdivision (2) of this subsection:

(A) if notice is not being given to the subscriber or customer, by obtaining a warrant [~~issued~~] under Section 5A [~~this code~~];

(B) if notice is being given to the subscriber or customer, by:

(i) an administrative subpoena authorized by statute;

(ii) a grand jury subpoena; or

(iii) a court order issued under Section 5 of this article; or

(2) Subdivision (1) of this subsection applies only to a wire communication or an electronic communication that is in electronic storage:

(A) on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and

(B) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing.

(d) An authorized peace officer may require a provider of remote computing service to disclose records or other information pertaining to a subscriber or customer of the service, other than communications described in Subsection (c) of this section, without giving the subscriber or customer notice:

(1) by obtaining an administrative subpoena authorized by statute;

(2) by obtaining a grand jury subpoena;

(3) by obtaining a warrant under Section 5A;

(4) by obtaining the consent of the subscriber or customer to the disclosure of the records or information;

(5) by obtaining a court order under Section 5 of this article; or

(6) as otherwise permitted by applicable federal law.

(e) A provider of telephonic communications service shall disclose to an authorized peace officer, without any form of legal process, subscriber listing information, including name, address, and telephone number or similar access code that:

(1) the service provides to others in the course of providing publicly available directory or similar assistance; or

(2) is solely for use in the dispatch of emergency vehicles and personnel responding to a distress call directed to an emergency dispatch system or when the information is reasonably necessary to aid in the dispatching of emergency vehicles and personnel for the immediate prevention of death, personal injury, or destruction of property.

SECTION 6. Sections 4(a), (b), (c), and (d), Article 18.21, Code of Criminal Procedure, are amended to read as follows:

(1) if notice is not being given to the subscriber or customer, by obtaining a warrant under Section 5A;

(2) if notice is being given to the subscriber or customer, by obtaining:

(A) an administrative subpoena authorized by statute;

(B) a grand jury subpoena; or

(3) as otherwise permitted by applicable federal law.

(A) if notice is not being given to the subscriber or customer, by obtaining a warrant [~~issued~~] under Section 5A [~~this code~~];

(B) if notice is being given to the subscriber or customer, by:

(i) an administrative subpoena authorized by statute;

(ii) a grand jury subpoena; or

(iii) a court order issued under Section 5 [~~of this article~~]; or

(2) Subdivision (1) of this subsection applies only to a wire communication or an electronic communication that is in electronic storage:

(d) An authorized peace officer may require a provider of electronic communications service or a provider of a remote computing service to disclose electronic customer data not otherwise described by [~~records or other information pertaining to a subscriber or customer of the service, other than communications described in Subsection (c) of~~] this section[,] without giving the [~~subscriber or~~] customer notice:

(1) by obtaining an administrative subpoena authorized by statute;

(2) by obtaining a grand jury subpoena;

(3) by obtaining a warrant under Section 5A;

(4) by obtaining the consent of the [~~subscriber or~~] customer to the disclosure of the customer data [~~records or information~~];

(5) by obtaining a court order under Section 5 [~~of this article~~]; or

(6) as otherwise permitted by applicable federal law.

SECTION 6. Article 18.21, Code of Criminal Procedure, is amended by adding Sections 5A and 5B to read as follows:

Sec. 5A. WARRANT ISSUED IN THIS STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS.

(a) On the filing of an application by an authorized peace officer, a district judge may issue a search warrant under this section for electronic customer data held in electronic storage or the contents of and records and other information related to a wire communication or electronic communication held in electronic storage by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (c), regardless of whether the customer data, contents of communications, or other information is held at a location in this state or at a location in another state. An application made under this subsection must demonstrate probable cause for the issuance of the warrant and must be supported by the oath or affirmation of the authorized peace officer.

(b) The peace officer shall execute the warrant not later than the 10th day after the date of issuance, except that the officer shall execute the warrant within a shorter period if so directed in the warrant by the district judge. For purposes of this subsection, a warrant is executed when the warrant is served in the manner described by Subsection (d).

(c) A warrant under this section may be served only on a service provider that is a domestic entity or a company or entity otherwise doing business in this state under a contract or a terms of service agreement with a resident of this state, if any part of that contract or agreement is to be performed in this state. The service provider shall produce all customer data, contents of communications, and other information sought, regardless of where the information is held and within the period allowed for compliance with the warrant, as provided by Subsection (e). A court may find any officer, director, or owner of a company or entity in contempt of court if the person by act or omission is responsible for the failure of the company or entity to comply with the warrant within the period allowed for compliance. The failure of a company or entity to timely deliver the information sought in the warrant does not affect the admissibility of that evidence in a criminal proceeding.

(d) A search warrant issued under this section is served when the authorized peace officer delivers the warrant by hand, by facsimile transmission, or, in a manner allowing proof of delivery, by means of the United States mail or a private delivery service to:

(1) a person specified by Section 5.255, Business Organizations Code; or

(2) the secretary of state in the case of a company or entity to which Section 5.251, Business Organizations Code, applies.

(e) The district judge shall indicate in the warrant the deadline for compliance by the provider of an electronic communications service or the provider of a remote computing service, which may not be later than the 10th business day after the date the warrant is served if the warrant is to be served on a domestic entity or a company or entity otherwise doing business in this state, except that the deadline for compliance with a warrant served in accordance with Section 5.251, Business Organizations Code, may be extended to a date that is not later than the 30th day after the date the warrant is served. The judge may indicate in a warrant that the period allowed for compliance is four business days or less after the date the warrant is served if the officer makes a showing and the judge finds that failure to comply with the warrant in four business days or less would cause serious jeopardy to an investigation, cause undue delay of a trial, or create a risk of:

(1) danger to the life or physical safety of any person;

(2) flight from prosecution;

(3) the tampering with or destruction of evidence; or

(4) intimidation of potential witnesses.

(f) The provider of an electronic communications service or a provider of a remote computing service responding to a warrant issued under this section shall verify the authenticity of the customer data, contents of communications, and other information produced in compliance with the warrant by including with the information an affidavit that is given by a person who is a custodian of the information or a person otherwise qualified to attest to its authenticity and that states that the information was stored in the course of regularly conducted business of the provider and specifies whether it is the regular practice of the provider to store that information.

(g) On a service provider's compliance with a warrant under this section, an authorized peace officer shall file a return of the warrant and a copy of the inventory of the seized property as required under Article 18.10.

(h) The district judge shall hear and decide any motion to quash the warrant not later than the fifth business day after the date the service provider files the motion. The judge may allow the service provider to appear at the hearing by teleconference.

Sec. 5B. WARRANT ISSUED IN ANOTHER STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS.

SECTION 7. Article 18.21, Code of Criminal Procedure, is amended by adding Sections 5A and 5B to read as follows:

Sec. 5A. WARRANT ISSUED IN THIS STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS. (a) This section applies to a warrant required under Section 4 to obtain electronic customer data, including the contents of a wire communication or electronic communication.

(b) On the filing of an application by an authorized peace officer, a district judge may issue a search warrant under this section for electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage, by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (h), regardless of whether the customer data is held at a location in this state or at a location in another state. An application made under this subsection must demonstrate probable cause for the issuance of the warrant and must be supported by the oath or affirmation of the authorized peace officer.

(c) A search warrant may not be issued under this section unless the sworn affidavit required by Article 18.01(b) sets forth sufficient and substantial facts to establish probable cause that:

(1) a specific offense has been committed; and

(2) the electronic customer data sought:

(A) constitutes evidence of that offense or evidence that a particular person committed that offense; and

(B) is held in electronic storage by the service provider on which the warrant is served under Subsection (i).

(d) Only the electronic customer data described in the sworn affidavit required by Article 18.01(b) may be seized under the warrant.

(e) A warrant issued under this section shall run in the name of "The State of Texas."

(f) Article 18.011 applies to an affidavit presented under Article 18.01(b) for the issuance of a warrant under this section, and the affidavit may be sealed in the manner provided by that article.

(g) The peace officer shall execute the warrant not later than the 11th day after the date of issuance, except that the officer shall execute the warrant within a shorter period if so directed in the warrant by the district judge. For purposes of this subsection, a warrant is executed when the warrant is served in the manner described by Subsection (i).

(h) A warrant under this section may be served only on a service provider that is a domestic entity or a company or entity otherwise doing business in this state under a contract or a terms of service agreement with a resident of this state, if any part of that contract or agreement is to be performed in this state. The service provider shall produce all electronic customer data, contents of communications, and other information sought, regardless of where the information is held and within the period allowed for compliance with the warrant, as provided by Subsection (j). A court may find any officer, director, or owner of a company or entity in contempt of court if the person by act or omission is responsible for the failure of the company or entity to comply with the warrant within the period allowed for compliance. The failure of a company or entity to timely deliver the information sought in the warrant does not affect the admissibility of that evidence in a criminal proceeding.

(i) A search warrant issued under this section is served when the authorized peace officer delivers the warrant by hand, by facsimile transmission, or, in a manner allowing proof of delivery, by means of the United States mail or a private delivery service to:

(1) a person specified by Section 5.255, Business Organizations Code;

(2) the secretary of state in the case of a company or entity to which Section 5.251, Business Organizations Code, applies; or

(3) any other person or entity designated to receive the service of process.

(j) The district judge shall indicate in the warrant that the deadline for compliance by the provider of an electronic communications service or the provider of a remote computing service is the 15th business day after the date the warrant is served if the warrant is to be served on a domestic entity or a company or entity otherwise doing business in this state, except that the deadline for compliance with a warrant served in accordance with Section 5.251, Business Organizations Code, may be extended to a date that is not later than the 30th day after the date the warrant is served. The judge may indicate in a warrant that the deadline for compliance is earlier than the 15th business day after the date the warrant is served if the officer makes a showing and the judge finds that failure to comply with the warrant by the earlier deadline would cause serious jeopardy to an investigation, cause undue delay of a trial, or create a risk of:

(1) danger to the life or physical safety of any person;

(2) flight from prosecution;

(3) the tampering with or destruction of evidence; or

(4) intimidation of potential witnesses.

(k) The provider of an electronic communications service or a provider of a remote computing service responding to a warrant issued under this section shall verify the authenticity of the customer data, contents of communications, and other information produced in compliance with the warrant by including with the information an affidavit that is given by a person who is a custodian of the information or a person otherwise qualified to attest to its authenticity and that states that the information was stored in the course of regularly conducted business of the provider and specifies whether it is the regular practice of the provider to store that information.

(l) On a service provider's compliance with a warrant under this section, an authorized peace officer shall file a return of the warrant and a copy of the inventory of the seized property as required under Article 18.10.

(m) The district judge shall hear and decide any motion to quash the warrant not later than the fifth business day after the date the service provider files the motion. The judge may allow the service provider to appear at the hearing by teleconference.

Sec. 5B. WARRANT ISSUED IN ANOTHER STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2013.

SECTION 8. Same as introduced version.