Chief Sponsor: Mark B. Madsen

House Sponsor: ____________


8     General Description:
9          This bill changes the standard of proof for an administrative subpoena for electronic
10     records to probable cause.
11     Highlighted Provisions:
12          This bill:
13          ▸     changes the standard of proof for an administrative subpoena from reasonable
14     suspicion to probable cause.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          77-22-2.5, as last amended by Laws of Utah 2014, Chapter 47

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 77-22-2.5 is amended to read:
25          77-22-2.5. Court orders for criminal investigations for records concerning an
26     electronic communications system or service or remote computing service -- Content --
27     Fee for providing information.

28          (1) As used in this section:
29          (a) (i) "Electronic communication" means any transfer of signs, signals, writing,
30     images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire,
31     radio, electromagnetic, photoelectronic, or photooptical system.
32          (ii) "Electronic communication" does not include:
33          (A) any wire or oral communication;
34          (B) any communication made through a tone-only paging device;
35          (C) any communication from a tracking device; or
36          (D) electronic funds transfer information stored by a financial institution in a
37     communications system used for the electronic storage and transfer of funds.
38          (b) "Electronic communications service" means any service which provides for users
39     the ability to send or receive wire or electronic communications.
40          (c) "Electronic communications system" means any wire, radio, electromagnetic,
41     photooptical, or photoelectronic facilities for the transmission of wire or electronic
42     communications, and any computer facilities or related electronic equipment for the electronic
43     storage of the communication.
44          (d) "Internet service provider" [has the same definition as] means the same as that term
45     is defined in Section 76-10-1230.
46          (e) "Prosecutor" [has the same definition as] means the same as that term is defined in
47     Section 77-22-2.
48          [(g)] (f) "Remote computing service" means the provision to the public of computer
49     storage or processing services by means of an electronic communications system.
50          [(f)] (g) "Sexual offense against a minor" means:
51          (i) sexual exploitation of a minor as defined in Section 76-5b-201 or attempted sexual
52     exploitation of a minor;
53          (ii) a sexual offense or attempted sexual offense committed against a minor in violation
54     of Title 76, Chapter 5, Part 4, Sexual Offenses;
55          (iii) dealing in or attempting to deal in material harmful to a minor in violation of
56     Section 76-10-1206; or
57          (iv) enticement of a minor or attempted enticement of a minor in violation of Section
58     76-4-401.

59          (2) When a law enforcement agency is investigating a sexual offense against a minor,
60     an offense of stalking under Section 76-5-106.5, or an offense of child kidnapping under
61     Section 76-5-301.1, and has [reasonable suspicion] probable cause to believe that an electronic
62     communications system or service or remote computing service has been used in the
63     commission of a criminal offense, a law enforcement agent shall:
64          (a) articulate specific facts showing [reasonable grounds] probable cause to believe that
65     the records or other information sought, as designated in Subsection (2)(c)(i) through (v), are
66     relevant and material to an ongoing investigation;
67          (b) present the request to a prosecutor for review and authorization to proceed; and
68          (c) submit the request to a district court judge for a court order, consistent with 18
69     U.S.C. 2703 and 18 U.S.C. 2702, to the electronic communications system or service or remote
70     computing service provider that owns or controls the Internet protocol address, websites, email
71     address, or service to a specific telephone number, requiring the production of the following
72     information, if available, upon providing in the court order the Internet protocol address, email
73     address, telephone number, or other identifier, and the dates and times the address, telephone
74     number, or other identifier was suspected of being used in the commission of the offense:
75          (i) names of subscribers, service customers, and users;
76          (ii) addresses of subscribers, service customers, and users;
77          (iii) records of session times and durations;
78          (iv) length of service, including the start date and types of service utilized; and
79          (v) telephone or other instrument subscriber numbers or other subscriber identifiers,
80     including any temporarily assigned network address.
81          (3) A court order issued under this section shall state that the electronic
82     communications system or service or remote computing service provider shall produce any
83     records under Subsections (2)(c)(i) through (v) that are reasonably relevant to the investigation
84     of the suspected criminal activity or offense as described in the court order.
85          (4) (a) An electronic communications system or service or remote computing service
86     provider that provides information in response to a court order issued under this section may
87     charge a fee, not to exceed the actual cost, for providing the information.
88          (b) The law enforcement agency conducting the investigation shall pay the fee.
89          (5) The electronic communications system or service or remote computing service

90     provider served with or responding to the court order may not disclose the court order to the
91     account holder identified pursuant to the court order for a period of 90 days.
92          (6) If the electronic communications system or service or remote computing service
93     provider served with the court order does not own or control the Internet protocol address,
94     websites, or email address, or provide service for the telephone number that is the subject of
95     the court order, the provider shall notify the investigating law enforcement agency that it does
96     not have the information.
97          (7) There is no cause of action against any provider or wire or electronic
98     communication service, or its officers, employees, agents, or other specified persons, for
99     providing information, facilities, or assistance in accordance with the terms of the court order
100     issued under this section or statutory authorization.
101          (8) (a) A court order issued under this section is subject to the provisions of Title 77,
102     Chapter 23b, Access to Electronic Communications.
103          (b) Rights and remedies for providers and subscribers under Title 77, Chapter 23b,
104     Access to Electronic Communications, apply to providers and subscribers subject to a court
105     order issued under this section.
106          (9) Every prosecutorial agency shall annually on or before February 15 report to the
107     Commission on Criminal and Juvenile Justice:
108          (a) the number of requests for court orders authorized by the prosecutorial agency;
109          (b) the number of orders issued by the court and the criminal offense, pursuant to
110     Subsection (2), each order was used to investigate; and
111          (c) if the court order led to criminal charges being filed, the type and number of
112     offenses charged.

Legislative Review Note
     as of 2-10-15 1:31 PM

Office of Legislative Research and General Counsel