By: Frullo, Thompson of Harris, Fletcher H.B. No. 2268

(Senate Sponsor - Carona)

(In the Senate - Received from the House May 8, 2013; May 9, 2013, read first time and referred to Committee on Criminal Justice; May 16, 2013, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 0; May 16, 2013, sent to printer.)

COMMITTEE SUBSTITUTE FOR H.B. No. 2268 By: Schwertner

A BILL TO BE ENTITLED

AN ACT

relating to search warrants issued in this state and other states for certain customer data, communications, and other related information held in electronic storage in this state and other states by providers of electronic communications services and remote computing services.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

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, including 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 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 to read as follows:

(a) The period [time] allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is:

(1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples;

(2) 10 whole days if the warrant is issued under Section 5A, Article 18.21; or

(3) [(2)] three whole days if the warrant is issued for a purpose other than that described by Subdivision (1) or (2).

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 5. Section 1, Article 18.21, Code of Criminal Procedure, is amended by adding Subdivisions (3-b) and (3-c) to read as follows:

(3-b) "Domestic entity" has the meaning assigned by Section 1.002, Business Organizations Code.

(3-c) "Electronic customer data" means data or records that:

(A) are acquired by or stored with the provider of an electronic communications service or a remote computing service; and

(B) contain:

(i) information revealing the identity of customers of the applicable service;

(ii) information about a customer's use of the applicable service;

(iii) information that identifies the recipient or destination of a wire communication or electronic communication sent to or by the customer;

(iv) the content of a wire communication or electronic communication sent to or by the customer; and

(v) any data stored by or on behalf of the customer with the applicable service provider.

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

(a) An authorized peace officer may require a provider of an 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 an 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

(C) a court order issued under Section 5 [of this article]; 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

(C) as otherwise permitted by applicable federal law.

(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 an 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 applicable 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 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 material 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) If the authorized peace officer serving the warrant under this section also delivers an affidavit form to the provider of an electronic communications service or the provider of a remote computing service responding to the warrant, and the peace officer also notifies the provider in writing that an executed affidavit is required, then the provider 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 the affidavit form completed and sworn to by a person who is a custodian of the information or a person otherwise qualified to attest to its authenticity 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.

(n) A provider of an electronic communications service or a provider of a remote computing service responding to a warrant issued under this section may request an extension of the period for compliance with the warrant if extenuating circumstances exist to justify the extension. The district judge shall grant a request for an extension based on those circumstances if:

(1) the authorized peace officer who applied for the warrant or another appropriate authorized peace officer agrees to the extension; or

(2) the district judge finds that the need for the extension outweighs the likelihood that the extension will cause an adverse circumstance described by Subsection (j).

Sec. 5B. WARRANT ISSUED IN ANOTHER STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS. Any domestic entity that provides electronic communications services or remote computing services to the public shall comply with a warrant issued in another state and seeking information described by Section 5A(b), if the warrant is served on the entity in a manner equivalent to the service of process requirements provided in Section 5A(h).

SECTION 8. Sections 6(a), (b), (d), (e), (f), and (g), Article 18.21, Code of Criminal Procedure, are amended to read as follows:

(a) A subpoena or court order for disclosure of the contents of an electronic communication held in electronic storage by a provider of an electronic communications service under Section 4(b) or by a provider of a remote computing service under Section 4(c) [of this article] may require that [the service] provider to [whom the request is directed] create a copy of the contents of the electronic communications sought by the subpoena or court order for the purpose of preserving those contents. The [service] provider may not inform the subscriber or customer whose communications are being sought that the subpoena or court order has been issued. The [service] provider shall create the copy not later than two business days after the date of the receipt by the [service] provider of the subpoena or court order.

(b) The provider of an electronic communications service or the provider of a remote computing service shall immediately notify the authorized peace officer who presented the subpoena or court order requesting the copy when the copy has been created.

(d) The provider of an electronic communications service or the provider of a remote computing service shall release the copy to the requesting authorized peace officer not earlier than the 14th day after the date of the peace officer's notice to the subscriber or customer if the [service] provider has not:

(1) initiated proceedings to challenge the request of the peace officer for the copy; or

(2) received notice from the subscriber or customer that the subscriber or customer has initiated proceedings to challenge the request.

(e) The provider of an electronic communications service or the provider of a remote computing service may not destroy or permit the destruction of the copy until the information has been delivered to the applicable [designated] law enforcement [office or] agency or until the resolution of any court proceedings, including appeals of any proceedings, relating to the subpoena or court order requesting the creation of the copy, whichever occurs last.

(f) An authorized peace officer who reasonably believes that notification to the subscriber or customer of the subpoena or court order would result in the destruction of or tampering with information sought may request the creation of a copy of the information. The peace officer's belief is not subject to challenge by the subscriber or customer or the provider of an electronic communications service or the provider of a remote computing service.

(g)(1) A subscriber or customer who receives notification as described in Subsection (c) [of this section] may file a written motion to quash the subpoena or vacate the court order in the court that issued the subpoena or court order not later than the 14th day after the date of the receipt of the notice. The motion must contain an affidavit or sworn statement stating [that]:

(A) that the applicant is a subscriber or customer of the provider of an electronic communications service or the provider of a remote computing service from which the contents of electronic communications stored for the subscriber or customer have been sought; and

(B) the applicant's reasons for believing that the information sought is not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article in some other respect.

(2) The subscriber or customer shall give written notice to the provider of an electronic communications service or the provider of a remote computing service of the challenge to the subpoena or court order. The authorized peace officer [or designated law enforcement office or agency] requesting the subpoena or court order must [shall] be served a copy of the papers filed by personal delivery or by registered or certified mail.

SECTION 9. 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.

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