2016 -- S 2403

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LC004252

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- CELL PHONE TRACKING

     Introduced By: Senators Nesselbush, Miller, Jabour, Conley, and Archambault

     Date Introduced: February 11, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

hereby amended by adding thereto the following chapter:

CHAPTER 32

CELL PHONE TRACKING

     12-32-1. Definitions. -- As used in this chapter:

     (1) "Adverse result" means:

     (i) Endangering the life or physical safety of an individual;

     (ii) Flight from prosecution;

     (iii) Destruction of or tampering with evidence;

     (iv) Intimidation of potential witnesses; or

     (v) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

     (2) "Electronic device" means any device that enables access to, or use of, an electronic

communication service (as defined in 18 U.S.C. § 2510(15)), remote computing service (as

defined in 18 U.S.C. § 2711(2)), or location information service.

     (3) "Location information" means any information concerning the location of an

electronic device that, in whole or in part, is generated by or derived from the operation of that

device.

      (4) "Location information service" means a global positioning service or other mapping,

locational, or directional information service.

      (5) Service provider means the provider of an electronic communications service, remote

computing service, or location information service.

     12-32-2. Requirement for warrant. -- No agent of the state or any political subdivision

thereof shall obtain location information without a warrant.

     12-32-3. Notice. -- (a) Unless delayed notice is ordered under subsection (b) of this

section, not later than three (3) days after an agent of the state or any political subdivision thereof

receives location information under this chapter, the agent of the state or any political subdivision

thereof shall serve upon, or deliver by registered or first-class mail, electronic mail, or other

means reasonably calculated to be effective as specified by the court issuing the warrant to the

customer(s) or subscriber(s):

     (1) A copy of the warrant; and

     (2) Notice that informs such customer(s) or subscriber(s):

     (i) Of the nature of the law enforcement inquiry with reasonable specificity;

     (ii) That location information maintained for such customer(s) or subscriber(s) was

supplied to or requested by that agent of the state or any political subdivision thereof and the date

on which the supplying or request took place;

     (iii) If such location information was obtained from a service provider or other third

party, the identity of the third party from which the information was obtained;

     (iv) Whether notification of such customer(s) or subscriber(s) was delayed pursuant to

§12-32-3(b);

     (v) What court made the certification or determination pursuant to which that delay was

made, if applicable; and

     (vi) If applicable, which provision of this chapter allowed such delay.

     (b) Delay of notification. - An agent of the state or any political subdivisions thereof

acting under this chapter may include in the application a request for an order delaying the

notification required pursuant to this subsection for a period not to exceed ninety (90) days, and

the court shall issue the order if the court determines that there is reason to believe that

notification of the existence of the warrant may have an adverse result.

     (c) Upon expiration of the period of delay granted under this section, the agent of the

state or any political subdivision thereof shall provide the customer(s) or subscriber(s) a copy of

the warrant together with any notice required.

     (d) Preclusion of notice to subject of governmental access. - An agent of the state or any

political subdivisions thereof acting under this chapter may include in the application a request

for an order directing a service provider to which a warrant is directed not to notify any other

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person of the existence of the warrant for a period of not more than ninety (90) days, and the

court shall issue the order if the court determines that there is reason to believe that notification of

the existence of the warrant may have an adverse result.

     (e) The court may, upon application, grant one or more extensions of orders granted

under this chapter for an additional ninety (90) days.

     12-32-4. Emergency situation exceptions. -- Notwithstanding any other provision of

this chapter, an agent of the state or any political subdivision may obtain location information:

     (1) In order to respond to the user’s call for emergency services;

     (2) With the express consent of the owner or user of the electronic communications

device concerned; or

     (3) If an agent of the state or any political subdivision thereof believes that an emergency

involving immediate danger of death or serious physical injury to any person requires obtaining

without delay of information relating to the emergency and the request is narrowly tailored to

address the emergency, subject to the following limitations:

     (i) The request shall document the factual basis for believing that an emergency involving

immediate danger of death or serious physical injury to a person requires obtaining without delay

the information relating to the emergency; and

     (ii) Not later than forty-eight (48) hours after the date on which an agent of the state or

any political subdivision thereof obtains access to records under the provisions of this section, a

governmental entity shall file with the appropriate court a signed, sworn statement of a

supervisory official of a rank designated by the head of the governmental entity setting forth the

grounds for the emergency access.

     12-32-5. Exigent circumstances exceptions. -- (a) An investigative or law enforcement

officer specially designated by the attorney general may acquire location information before

obtaining a warrant authorizing the installation or use if:

     (1) The officer cannot, with due diligence, obtain a warrant to address an emergency

situation that involves immediate danger of death or serious bodily injury; and

     (2) When the officer acquires location information, there are grounds upon which a

warrant could be entered under this chapter to authorize the acquisition.

     (b) An officer who acquires location information before obtaining an order authorizing

the acquisition must, within forty-eight (48) hours after the acquisition occurs or begins to occur,

obtain a warrant approving the installation or use in accordance with this chapter.

     (c) In the absence of a warrant, such acquisition shall immediately terminate when the

location information sought is obtained or when the application for a warrant is denied,

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whichever is earlier.

     (d) In the event such application for a warrant is denied, or in any other case where the

interception is terminated without a warrant having been issued, the location information acquired

shall be treated as having been obtained in violation of this chapter, and notice shall be served to

all owners or users of electronic devices about which location information was acquired in

violation of this chapter.

     12-32-6. Reporting requirements. -- By January 31 of each calendar year, the attorney

general shall issue a report identifying the number of warrants approved and denied in the

previous year, including:

     (1) The identity of the agency making the application;

     (2) The offense specified in the warrant or application therefor;

     (3) The nature of the facilities from which, the place where, or the technique by which

location information was to be obtained;

     (4) The expected number of devices about which location information was to be

obtained;

     (5) The fact that the warrant was granted as applied for, was modified, or was denied; and

     (6) The period of disclosures authorized by the warrant, and the number and duration of

any extensions of the warrant.

     12-32-7. Suppression. -- (a) Except as proof of a violation of this section, no evidence

obtained in violation of this section shall be admissible in any criminal, civil, administrative, or

other proceeding.

     (b) Any location information obtained pursuant to this chapter or evidence derived

therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other

proceeding in a federal or state court unless each party, not less than ten (10) days before the trial,

hearing, or proceeding, has been furnished with a copy of the warrant, and accompanying

application, under which the information was obtained. This ten (10) day period may be waived

by the judge if they find that it was not possible to furnish the party with the above information

ten (10) days before the trial, hearing, or proceeding and that the party will not be prejudiced by

the delay in receiving such information.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE -- CELL PHONE TRACKING

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     This act would require the issuance of a warrant to obtain cell phone location information

subject to emergency situation exceptions.

     This act would take effect upon passage.

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LC004252

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