2020 -- S 2417

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LC004245

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO COMMERCIAL LAW - GENERAL REGULATORY PROVISIONS -

ESTABLISHING THE ELECTRONIC INFORMATION OR DATA PRIVACY ACT

     

     Introduced By: Senators de la Cruz, Morgan, Paolino, Euer, and Lombardi

     Date Introduced: February 13, 2020

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 6 of the General Laws entitled "COMMERCIAL LAW - GENERAL

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REGULATORY PROVISIONS" is hereby amended by adding thereto the following chapter:

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CHAPTER 13.4

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ELECTRONIC INFORMATION OR DATA PRIVACY ACT

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     6-13.4-1. Short title.

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     This chapter shall be known and may be cited as the "Electronic Information or Data

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Privacy Act."

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     6-13.4-2. Definitions.

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     As used in this chapter:

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     (1) "Electronic communication service" means a service that provides to users of the

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service the ability to send or receive wire or electronic communications.

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

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communication service, remote computing service, or location information service.

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     (3)(i) "Electronic information or data" means information or data including a sign, signal,

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writing, image, sound, or intelligence of any nature transmitted or stored in whole or in part by a

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wire, radio, electromagnetic, photoelectronic, or photooptical system.

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     (ii) "Electronic information or data" means and includes the location information, stored

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data, or transmitted data of an electronic device.

 

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     (iii) "Electronic information or data" does not include:

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     (A) A wire or oral communication;

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     (B) A communication made through a tone-only paging device; or

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     (C) Electronic funds transfer information stored by a financial institution in a

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communications system used for the electronic storage and transfer of money.

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     (4) "Law enforcement agency" means an entity of the state or a political subdivision of

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the state that exists to primarily prevent, detect, or prosecute crime and enforce criminal statutes

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or ordinances.

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     (5) "Location information" means information, obtained by means of a tracking device,

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concerning the location of an electronic device that, in whole or in part, is generated or derived

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from or obtained by the operation of an electronic device.

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     (6) "Location information service" means the provision of a global positioning service or

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other mapping, location, or directional information service.

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     (7) "Oral communication" means the same as that term is defined in § 12-5.1-1.

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     (8) "Remote computing service" means the provision to the public of computer storage or

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processing services by means of an electronic communications system.

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     (9) "Subscriber record" means a record or information of a provider of an electronic

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communication service or remote computing service that reveals the subscriber's or customer's:

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     (i) Name;

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     (ii) Address;

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     (iii) Local and long distance telephone connection record, or record of session time and

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duration;

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     (iv) Length of service, including the start date;

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     (v) Type of service used;

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     (vi) Telephone number, instrument number, or other subscriber or customer number or

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identification, including a temporarily assigned network address; and

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     (vii) Means and source of payment for the service, including a credit card or bank

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account number.

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     (10) "Transmitted data" means electronic information or data that is transmitted

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wirelessly:

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     (i) From an electronic device to another electronic device without the use of an

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intermediate connection or relay; or

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     (ii) From an electronic device to a nearby antenna.

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     (11) "Wire communication" means the same as that term is defined in 18 U.S.C. § 2510.

 

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     6-13.4-3. Warrant requirements and exceptions.

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     (a)(1) Except as provided in subsection (b) of this section, for a criminal investigation or

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prosecution, a law enforcement agency may not obtain, without a search warrant issued by a court

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upon probable cause:

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     (i) The location information, stored data, or transmitted data of an electronic device; or

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     (ii) Electronic information or data transmitted by the owner of the electronic information

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or data to a remote computing service provider.

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     (2) Except as provided in subsection (a)(3) of this section, a law enforcement agency may

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not use, copy, or disclose, for any purpose, the location information, stored data, transmitted data

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of an electronic device, or electronic information or data provided by a remote computing service

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provider, that:

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     (i) Is not the subject of the warrant; and

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     (ii) Is collected as part of an effort to obtain the location information, stored data,

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transmitted data of an electronic device, or electronic information or data provided by a remote

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computing service provider that is the subject of the warrant in subsection (a)(1) of this section.

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     (3) A law enforcement agency may use, copy, or disclose the transmitted data of an

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electronic device used to communicate with the electronic device that is the subject of the warrant

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if the law enforcement agency reasonably believes that the transmitted data is necessary to

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achieve the objective of the warrant.

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     (4) The electronic information or data described in subsection (a)(2) shall be destroyed in

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an unrecoverable manner by the law enforcement agency as soon as reasonably possible after the

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electronic information or data is collected.

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     (b)(1) A law enforcement agency may obtain location information without a warrant for

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an electronic device:

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     (i) In accordance with exigent circumstances when a police officer or law enforcement

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official has an objectively reasonable basis that serious injury or death may result upon delay;

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     (ii) If the device is reported stolen by the owner;

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     (iii) With the informed, affirmative consent of the owner or user of the electronic device;

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     (iv) In accordance with a judicially recognized exception to warrant requirements;

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     (v) If the owner has voluntarily and publicly disclosed the location information; or

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     (vi) From the remote computing service provider if the remote computing service

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provider voluntarily discloses the location information:

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     (A) Under a belief that an emergency exists involving an imminent risk to an individual

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of death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping, or

 

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human trafficking; or

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     (B) That is inadvertently discovered by the remote computing service provider and

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appears to pertain to the commission of a felony, or of a misdemeanor involving physical

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violence, sexual abuse, or dishonesty.

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     (2) A law enforcement agency may obtain stored or transmitted data from an electronic

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device, or electronic information or data transmitted by the owner of the electronic information or

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data to a remote computing service provider, without a warrant:

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     (i) With the informed consent of the owner of the electronic device or electronic

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information or data;

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     (ii) In accordance with a judicially recognized exception to warrant requirements;

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     (iii) In connection with a report forwarded by the National Center for Missing and

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Exploited Children under 18 U.S.C. § 2258A; or

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     (iv) From a remote computing service provider if the remote computing service provider

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voluntarily discloses the stored or transmitted data as otherwise permitted under 18 U.S.C. §

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2702.

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     (3) A prosecutor may obtain a judicial order or warrant as otherwise permitted by law.

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     (c) An electronic communication service provider or remote computing service provider,

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the provider's officers, employees, agents or other specified persons may not be held liable for

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providing information, facilities, or assistance in good faith reliance on the terms of the warrant

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issued under this section or without a warrant in accordance with subsection (b) of this section.

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     (d) Nothing in this chapter limits or affects the disclosure of public records under chapter

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2 of title 38.

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     6-13.4-4. Notification required - Delayed notification.

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     (a)(1) Except as provided in subsection (b) of this section, a law enforcement agency that

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executes a warrant pursuant to this chapter shall, within fourteen (14) days after the day on which

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the electronic information or data that is the subject of the warrant is obtained by the law

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enforcement agency, issue a notification to the owner of the electronic device or electronic

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information or data specified in the warrant that states:

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     (i) That a warrant was applied for and granted;

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     (ii) The kind of warrant issued;

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     (iii) The period of time during which the collection of the electronic information or data

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was authorized;

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     (iv) The offense specified in the application for the warrant;

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     (v) The identity of the law enforcement agency that filed the application; and

 

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     (vi) The identity of the judge who issued the warrant.

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     (2) The notification requirement under subsection (a)(1) of this section is not triggered

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until the owner of the electronic device or electronic information or data specified in the warrant

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is known, or could be reasonably identified, by the law enforcement agency.

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     (b) A law enforcement agency seeking a warrant pursuant to the provision of this chapter

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may submit a request, and the court may grant permission, to delay the notification required by

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subsection (a) of this section for a period not to exceed thirty (30) days, if the court determines

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that there is reasonable cause to believe that the notification may:

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     (1) Endanger the life or physical safety of an individual;

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     (2) Cause a person to flee from prosecution;

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

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     (4) Intimidate a potential witness; or

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     (5) Otherwise seriously jeopardize an investigation or unduly delay a trial.

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     (c)(1) When a delay of notification is granted under subsection (b) of this section and

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upon application by the law enforcement agency, the court may grant additional extensions of up

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to thirty (30) days each.

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     (2) Notwithstanding subsection (c)(1) of this section, when a delay of notification is

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granted under subsection (b), and upon application by a law enforcement agency, the court may

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grant an additional extension of up to sixty (60) days if the court determines that a delayed

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notification is justified because the investigation involving the warrant:

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     (i) Is Interstate in nature and sufficiently complex; or

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     (ii) Is likely to extend up to or beyond an additional sixty (60) days.

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     (d) Upon expiration of the period of delayed notification granted under subsection (b) or

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(c) of this section, the law enforcement agency shall serve upon or deliver by first-class mail, or

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by other means if delivery is impracticable, to the owner of the electronic device or electronic

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information or data a copy of the warrant together with notice that:

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     (1) States with reasonable specificity the nature of the law enforcement inquiry; and

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     (2) Contains:

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     (i) The information described in subsection (a)(1) of this section;

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     (ii) A statement that notification of the search was delayed;

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     (iii) The name of the court that authorized the delay of notification; and

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     (iv) A reference to the provision of this chapter that allowed the delay of notification.

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     (e) A law enforcement agency is not required to notify the owner of the electronic device

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or electronic information or data if the owner is located outside of the United States.

 

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     6-13.4-5. Law enforcement use.

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     (a) Except as provided pursuant to subsection (b) of this section, a law enforcement

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agency may not obtain, use, copy, or disclose, for a criminal investigation or prosecution, any

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record or information, other than subscriber record, of a provider of an electronic communication

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service or remote computing service related to a subscriber or customer without a warrant.

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     (b) A law enforcement agency may obtain, use, copy, or disclose a subscriber record, or

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other record or information related to a subscriber or customer, without a warrant:

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     (1) With the informed, affirmed consent of the subscriber or customer;

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     (2) In accordance with a judicially recognized exception to warrant requirements;

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     (3) If the subscriber or customer voluntarily discloses the record in a manner that is

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publicly accessible; or

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     (4) If the provider of an electronic communication service or remote computing service

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voluntarily discloses the record:

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     (i) Under a belief that an emergency exists involving the imminent risk to an individual

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of:

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     (A) Death;

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     (B) Serious physical injury;

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     (C) Sexual abuse;

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     (D) Live-streamed sexual exploitation;

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     (E) Kidnapping; or

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     (F) Human trafficking;

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     (ii) That is inadvertently discovered by the provider, if the record appears to pertain to the

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commission of:

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     (A) A felony; or

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     (B) A misdemeanor involving physical violence, sexual abuse, or dishonesty; or

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     (iii) As otherwise permitted under 18 U.S.C. § 2702.

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     (c) A provider of an electronic communication service or remote computing service, or

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the provider's officers, employees, agents, or other specified persons may not be held liable for

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providing information, facilities, or assistance in good faith reliance on the terms of a warrant

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issued under this section, or without a warrant in accordance with the provisions of subsection (b)

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of this section.

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     6-13.4-6. Exclusion of records.

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     All electronic information or data and records of a provider of an electronic

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communications service or remote computing service pertaining to a subscriber or customer that

 

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are obtained in violation of the provisions of this chapter shall be subject to the rules governing

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exclusion as if the record were obtained in violation of the Fourth Amendment to the United

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States Constitution.

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     SECTION 2. This act shall take effect upon passage.

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LC004245

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COMMERCIAL LAW - GENERAL REGULATORY PROVISIONS -

ESTABLISHING THE ELECTRONIC INFORMATION OR DATA PRIVACY ACT

***

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     This act would provide electronic data and information privacy protection. The act would

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limit access by law enforcement to electronic data and information to specified circumstances and

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to situations when a warrant is issued.

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     This act would take effect upon passage.

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LC004245

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