1     
ADMINISTRATIVE SUBPOENA AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mark B. Madsen

5     
House Sponsor: ____________

6     

7     LONG TITLE
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 for electronic records
14     from reasonable suspicion to probable cause; and
15          ▸     makes technical and conforming changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          77-22-2.5, as last amended by Laws of Utah 2015, Chapter 99
23     

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

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

59     76-4-401.
60          (2) When a law enforcement agency is investigating a sexual offense against a minor,
61     an offense of stalking under Section 76-5-106.5, or an offense of child kidnapping under
62     Section 76-5-301.1, and has [reasonable suspicion] probable cause to believe that an electronic
63     communications system or service or remote computing service has been used in the
64     commission of a criminal offense, a law enforcement agent shall:
65          (a) articulate specific facts showing [reasonable grounds] probable cause to believe that
66     the records or other information sought, as designated in Subsections [(1)] (2)(c)(i) through (v),
67     are relevant and material to an ongoing investigation;
68          (b) present the request to a prosecutor for review and authorization to proceed; and
69          (c) submit the request to a magistrate for a court order, consistent with 18 U.S.C. 2703
70     and 18 U.S.C. 2702, to the electronic communications system or service or remote computing
71     service provider that owns or controls the Internet protocol address, websites, email address, or
72     service to a specific telephone number, requiring the production of the following information,
73     if available, upon providing in the court order the Internet protocol address, email address,
74     telephone number, or other identifier, and the dates and times the address, telephone number,
75     or other identifier was suspected of being used in the commission of the offense:
76          (i) names of subscribers, service customers, and users;
77          (ii) addresses of subscribers, service customers, and users;
78          (iii) records of session times and durations;
79          (iv) length of service, including the start date and types of service utilized; and
80          (v) telephone or other instrument subscriber numbers or other subscriber identifiers,
81     including any temporarily assigned network address.
82          (3) A court order issued under this section shall state that the electronic
83     communications system or service or remote computing service provider shall produce any
84     records under Subsections (2)(c)(i) through (v) that are reasonably relevant to the investigation
85     of the suspected criminal activity or offense as described in the court order.
86          (4) (a) An electronic communications system or service or remote computing service
87     provider that provides information in response to a court order issued under this section may
88     charge a fee, not to exceed the actual cost, for providing the information.
89          (b) The law enforcement agency conducting the investigation shall pay the fee.

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






Legislative Review Note
Office of Legislative Research and General Counsel