2018 -- H 7754

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LC003754

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- PEN REGISTERS AND TRAP AND TRACE

DEVICES

     Introduced By: Representatives Filippi, Chippendale, Morgan, Quattrocchi, and Roberts

     Date Introduced: February 28, 2018

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 12-5.2-1, 12-5.2-2, 12-5.2-3 and 12-5.2-4 of the General Laws in

Chapter 12-5.2 entitled "Pen Registers and Trap and Trace Devices" are hereby amended to read

as follows:

     12-5.2-1. Definitions.

     As used in this chapter:

     (1) "Designated offense" means the offenses of:

     (i) Murder, robbery, kidnapping, extortion, assault with a dangerous weapon, and assault

with intent to rob or murder;

     (ii) Arson in the first degree, arson in the second degree, or arson in the third degree;

     (iii) Bribery; larceny involving the receipt of stolen property of a value of more than five

hundred dollars ($500);

     (iv) Any violation of chapter 28 of title 21 where the offense is punishable by

imprisonment for more than one year;

     (v) Any violation of chapters 19, 47, or 51 of title 11, where the offense is punishable by

imprisonment for more than one year;

     (vi) The lending of money at a rate of interest in violation of law; and

     (vii) Conspiracy to commit any of the offenses provided in this subdivision;

     (2) "Pen register" means a device which records or decodes electronic or other impulses

which identify the numbers dialed or otherwise transmitted on the telephone line to which the

device is attached, but does not include any device used by a provider or customer of a wire or

electronic communication service for billing, or recording as an incident to billing, for

communications services provided by the provider or any device used by a provider or customer

of a wire communication service for cost accounting or other like purposes in the ordinary course

of its business;

     (3) "Stingray" means any cell-site simulator device which forces nearby mobile phones

and other cellular data devices to connect to it, or forces a temporary connection with cellular

devices for the purposes of downloading the IMSI, ESN, or other identifying data from each of

the cellular phones or cellular data devices which are forced to connect to the device.

     (3)(4) "Trap and trace device" means a device which captures the incoming electronic or

other impulses which identify the originating number of an instrument or device from which a

wire or electronic communication was transmitted;

     (4)(5) "Wire communications" has the meaning set forth in § 12-5.1-1.

     12-5.2-2. Application for an order for a pen register or a trap and trace device.

     (a) (1) The attorney general or an assistant attorney general designated by the attorney

general may make application for an order or an extension of an order pursuant to the provisions

of § 12-5.2-3 authorizing or approving the installation and use of a pen register or a trap and trace

device or a stingray under this chapter, in writing under oath or equivalent affirmation, to the

presiding justice of the superior court or his or her designee in order to obtain information

regarding a designated offense.

     (2) Any law enforcement officer set forth in § 12-5-3 may make application for an order

or an extension of an order under § 12-5.2-3 authorizing or approving the installation and use of a

pen register or a trap and trace device or a stingray under this chapter, in writing under oath or

equivalent affirmation to the presiding justice of the superior court or his or her designee.

     (b) An application pursuant to subsection (a) of this section shall include:

     (1) The identity of the attorney general, assistant attorney general, or the law enforcement

officer making the application and the identity of the law enforcement agency conducting the

investigation; and

     (2) A certification by the applicant that the information likely to be obtained is relevant

and necessary to an ongoing criminal investigation, that other investigative procedures have been

or are being initiated or conducted, and that the request for the issuance of the pen register and/or

trap and trace device or a stingray is necessary to further an ongoing criminal investigation being

conducted by that agency.

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     12-5.2-3. Issuance of an order for a pen register or a trap and trace device.

     (a) (1) Upon an application made pursuant to § 12-5.2-2, the court shall enter an ex parte

order authorizing the installation and use of a pen register or a trap and trace device if the court is

reasonably satisfied that the information likely to be obtained by the installation and use is

relevant and necessary to further an ongoing criminal investigation and that use of a pen register

or trap and trace device or a stingray is the least intrusive way to obtain the information sought.

     (2) An order issued under this section shall specify:

     (i) The identity, if known, of the person to whom is leased or in whose name is listed the

telephone line to which the pen register or trap and trace device or a stingray is to be attached;

     (ii) The identity of the person who is the subject of the criminal investigation;

     (iii) The number and physical location of the telephone line to which the pen register or

trap and trace device is to be attached and, in the case if a trap and trace device or a stingray, the

geographic limits of the trap and trace order;

     (iv) A statement of the offense to which the information likely to be obtained by the pen

register or trap and trace device or a stingray is relevant; and

     (v) Shall direct, upon the request of the applicant, the furnishing of information, facilities,

and technical assistance necessary to accomplish the installation of the pen register or trap and

trace device or a stingray under § 12-5.2-4.

     (b) An order issued pursuant to this section shall authorize the installation and use of a

pen register or a trap and trace device or a stingray for a period not to exceed sixty (60) days.

     (c) Extensions of the order may be granted only upon an application for an order pursuant

to § 12-5.2-2, and upon the judicial finding required by subdivision (a)(1) of this section. The

period of extension shall be a period not to exceed sixty (60) days.

     (d) An order authorizing or approving the installation and use of a pen register or a trap

and trace device or a stingray shall direct that:

     (1) The order is sealed until otherwise ordered by the court; and

     (2) The person owning or leasing the line to which the pen register or a trap and trace

device or a stingray is attached, or who has been ordered by the court to provide assistance to the

applicant, not disclose the existence of the pen register or trap and trace device or the existence of

the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered

by the court.

     12-5.2-4. Assistance in installation and use of pen register or a trap and trace device.

     (a) Upon the request of the attorney general, assistant attorney general, or law

enforcement officer authorized to install and use a pen register or a stingray under this chapter, a

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provider of wire communication service shall immediately furnish the attorney general, assistant

attorney general, or law enforcement officer all information, facilities, and technical assistance

necessary to accomplish the installation of the pen register or a stingray unobtrusively, and with a

minimum of interference with the services that the person so ordered by the court accords the

party with respect to whom the installation and use is to take place, if the assistance is directed by

a court order as provided in § 12-5.2-3.

     (b) Upon the request of the attorney general, assistant attorney general, or an officer of a

law enforcement agency authorized to receive the results of a trap and trace device or a stingray

under this chapter, a provider of a wire communication service shall immediately install the

device on the appropriate line and shall furnish the investigative or law enforcement officer all

additional information, facilities, and technical assistance including installation and operation of

the device unobtrusively and with a minimum of interference with the services that the person so

ordered by the court accords the party with respect to whom the installation and use is to take

place, if the installation and assistance is directed by a court order as provided in § 12-5.2-3.

Unless otherwise ordered by the court, the results of the trap and trace device or a stingray shall

be furnished to the attorney general, assistant attorney general, or officer of a law enforcement

agency, designated by the court, at reasonable intervals during regular business hours for the

duration of the order.

     (c) A provider of a wire communication service who furnishes facilities or technical

assistance pursuant to this section shall be reasonably compensated for reasonable expenses

incurred in providing these facilities and assistance.

     (d) No cause of action shall lie in any court against any provider of a wire communication

service, its officers, employees, or agents, or other specified persons for providing information,

facilities, or assistance in accordance with the terms of a court order under this chapter.

     (e) Good faith reliance on a court order, a legislative authorization, or a statutory

authorization shall be an absolute defense against any civil or criminal action brought pursuant to

this chapter or any other law.

     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 -- PEN REGISTERS AND TRAP AND TRACE

DEVICES

***

     This act would prohibit the use of a stingray cell-site simulator device by any law

enforcement agency except upon application for its use and the granting of its order by the

presiding justice of the superior court.

     This act would take effect upon passage.

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