1     
COMMUNICATION INTERCEPTION AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to interception of communications.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires all parties to a communication to give consent to an interception, with
13     certain exceptions; and
14          ▸     makes technical changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          77-23a-4, as last amended by Laws of Utah 2011, Chapter 340
22     

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 77-23a-4 is amended to read:
25          77-23a-4. Offenses -- Criminal and civil -- Lawful interception.
26          (1) (a) Except as otherwise specifically provided in this chapter, [any] a person who
27     violates Subsection (1)(b) is guilty of an offense and is subject to punishment under Subsection
28     (10), or when applicable, the person is subject to civil action under Subsection (11).
29          (b) A person commits a violation of this [subsection] Subsection (1) who:
30          (i) intentionally or knowingly intercepts, endeavors to intercept, or procures [any other]
31     another person to intercept or endeavor to intercept [any] a wire, electronic, or oral
32     communication;
33          (ii) intentionally or knowingly uses, endeavors to use, or procures [any other] another
34     person to use or endeavor to use [any] an electronic, mechanical, or other device to intercept
35     [any] an oral communication, when the device is affixed to, or otherwise transmits a signal
36     through a wire, cable, or other like connection used in wire communication or when the device
37     transmits communications by radio, or interferes with the transmission of the communication;
38          (iii) intentionally or knowingly discloses or endeavors to disclose to [any other]
39     another person the contents of [any] a wire, electronic, or oral communication, knowing or
40     having reason to know that the information was obtained through the interception of a wire,
41     electronic, or oral communication in violation of this section; or
42          (iv) intentionally or knowingly uses or endeavors to use the contents of [any] a wire,
43     electronic, or oral communication, knowing or having reason to know that the information was
44     obtained through the interception of a wire, electronic, or oral communication in violation of
45     this section.
46          (2) The operator of a switchboard, or an officer, employee, or agent of a provider of
47     wire or electronic communication service whose facilities are used in the transmission of a wire
48     communication may intercept, disclose, or use that communication in the normal course of
49     [his] the person's employment while engaged in [any] an activity [which] that is a necessary
50     incident to the rendition of [his] that person's service or to the protection of the rights or
51     property of the provider of that service. However, a provider of wire communications service
52     to the public may not [utilize] use service observing or random monitoring except for
53     mechanical or service quality control checks.
54          (3) (a) [Providers] A provider of wire or electronic communications service, [their
55     officers, employees, or agents, and any landlords, custodians, or other persons] a provider's
56     officer, employee, or agent, and a landlord, custodian, or other person may provide
57     information, facilities, or technical assistance to [persons] a person authorized by law to
58     intercept wire, oral, or electronic communications or to conduct electronic surveillance if the
59     provider and [its officers, employees, or agents, and any landlords, custodians, or other
60     specified persons] the provider's officer, employee, or agent, and a landlord, custodian, or other
61     specified person have been provided with:
62          (i) a court order directing the assistance signed by the authorizing judge; or
63          (ii) a certification in writing by a person specified in Subsection 77-23a-10(7), or by
64     the attorney general or an assistant attorney general, or by a county attorney or district attorney
65     or [his] a county attorney's or district attorney's deputy that no warrant or court order is required
66     by law, that all statutory requirements have been met, and that the specified assistance is
67     required.
68          (b) The order or certification under this [subsection] Subsection (3) shall set the period
69     of time during which the provision of the information, facilities, or technical assistance is
70     authorized and shall specify the information, facilities, or technical assistance required.
71          (4) (a) [The providers] A provider of wire or electronic communications service, [their
72     officers, employees, or agents, and any landlords, custodians, or other specified persons] a
73     provider's officer, employee, or agent, and a landlord, custodian, or other specified person may
74     not disclose the existence of [any] an interception or surveillance or the device used to
75     accomplish the interception or surveillance regarding which the person has been furnished an
76     order or certification under this section except as is otherwise required by legal process, and
77     then only after prior notification to the attorney general or to the county attorney or district
78     attorney of the county in which the interception was conducted, as is appropriate.
79          (b) [Any] A disclosure in violation of this [subsection] Subsection (4) renders the
80     person liable for civil damages under Section 77-23a-11.
81          (5) A cause of action does not lie in [any] a court against [any] a provider of wire or
82     electronic communications service, [its officers, employees, or agents, or any landlords,
83     custodians, or other specified persons] a provider's officer, employee, or agent, or a landlord,
84     custodian, or other specified person for providing information, facilities, or assistance in
85     accordance with the terms of a court order or certification under this chapter.
86          (6) Subsections (3), (4), and (5) supersede any law to the contrary.
87          (7) (a) A person acting under color of law may intercept a wire, electronic, or oral
88     communication if that person is a party to the communication or one of the parties to the
89     communication has given prior consent to the interception.
90          (b) A person not acting under color of law may intercept a private wire, electronic, or
91     oral communication if [that person is a party to the communication or one] all of the parties to
92     the communication [has given] give prior consent to the interception[, unless the
93     communication is intercepted for the purpose of committing any criminal or tortious act in
94     violation of state or federal laws].
95          (c) An employee of a telephone company may intercept a wire communication for the
96     sole purpose of tracing the origin of the communication when the interception is requested by
97     the recipient of the communication and the recipient alleges that the communication is obscene,
98     harassing, or threatening in nature. The telephone company and [its officers, employees, and
99     agents] the telephone company's officer, employee, and agent shall release the results of the
100     interception, made under this [subsection] Subsection (7)(c), upon request of the local law
101     enforcement authorities.
102          (d) Notwithstanding Subsection (7)(b), a wire, electronic, or oral communication may
103     be recorded with the consent of one party to the communication when the person making the
104     recording reasonably believes that the communication:
105          (i) is of an emergency nature, such as the reporting of a fire, medical emergency, crime,
106     or disaster;
107          (ii) is likely to involve or convey threats of extortion, blackmail, bodily harm, injury,
108     abuse, whether physical, psychological, or otherwise, other unlawful requests or demands, or
109     evidence of a crime;
110          (iii) is likely to be fraudulent, obscene, or harassing in nature;
111          (iv) occurs anonymously, repeatedly, or without invitation or at an inconvenient hour;
112          (v) is intended to harass or is part of an ongoing pattern of harassment or abuse;
113          (vi) relates to communications by a hostage holder as discussed in Section 54-3-24, or
114     barricaded person, whether or not conversation ensues;
115          (vii) involves a commercial solicitor, pollster, or other person unknown to the recipient
116     of the communication; or
117          (viii) consists of a statement by a public official or public employee in the performance
118     of the public official's or public employee's official duty.
119          (8) A person may:
120          (a) intercept or access an electronic communication made through an electronic
121     communications system that is configured so that the electronic communication is readily
122     accessible to the general public;
123          (b) intercept [any] a radio communication transmitted by:
124          (i) [any] a station for the use of the general public, or that relates to ships, aircraft,
125     vehicles, or persons in distress;
126          (ii) [any] a government, law enforcement, civil defense, private land mobile, or public
127     safety communications system, including police and fire, readily accessible to the general
128     public;
129          (iii) a station operating on an authorized frequency within the bands allocated to the
130     amateur, citizens' band, or general mobile radio services; or
131          (iv) by a marine or aeronautics communications system;
132          (c) intercept [any] a wire or electronic communication, the transmission of which is
133     causing harmful interference to [any] a lawfully operating station or consumer electronic
134     equipment, to the extent necessary to identify the source of the interference; or
135          (d) as one of a group of users of the same frequency, intercept [any] a radio
136     communication made through a system that [utilizes] uses frequencies monitored by
137     individuals engaged in the provision or the use of the system, if the communication is not
138     scrambled or encrypted.
139          (9) (a) Except under Subsection (9)(b), a person [or entity] providing an electronic
140     communications service to the public may not intentionally divulge the contents of [any] a
141     communication, while in transmission of that service, to any person [or entity] other than an
142     addressee or intended recipient of the communication or his agent.
143          (b) A person [or entity] providing electronic communications service to the public may
144     divulge the contents of [any] a communication:
145          (i) as otherwise authorized under this section or Section 77-23a-9;
146          (ii) with lawful consent of the originator or [any] an addressee or intended recipient of
147     the communication;
148          (iii) to a person employed or authorized or whose facilities are used to forward the
149     communication to [its] the communication's destination; or
150          (iv) that is inadvertently obtained by the service provider and appears to pertain to the
151     commission of a crime, if the divulgence is made to a law enforcement agency.
152          (10) (a) Except under Subsection (10)(b) or (11), a violation of Subsection (1) is a third
153     degree felony.
154          (b) If the offense is a first offense under this section and is not for a tortious or illegal
155     purpose or for purposes of direct or indirect commercial advantage or private commercial gain,
156     and the wire or electronic communication regarding which the offense was committed is a
157     radio communication that is not scrambled or encrypted:
158          (i) if the communication is not the radio portion of a cellular telephone communication,
159     a public land mobile radio service communication, or paging service communication, and the
160     conduct is not under Subsection (11), the offense is a class A misdemeanor; and
161          (ii) if the communication is the radio portion of a cellular telephone communication, a
162     public land mobile radio service communication, or a paging service communication, the
163     offense is a class B misdemeanor.
164          (c) Conduct otherwise an offense under this section is not an offense if the conduct was
165     not done for the purpose of direct or indirect commercial advantage or private financial gain,
166     and consists of or relates to the interception of a satellite transmission that is not encrypted or
167     scrambled, and is either transmitted:
168          (i) to a broadcasting station for purposes of retransmission to the general public; or
169          (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but
170     in any event not including data transmissions or telephone calls.
171          (11) (a) A person is subject to civil suit initiated by the state in a court of competent
172     jurisdiction when [his] the person's conduct is prohibited under Subsection (1) and the conduct
173     involves a:
174          (i) private satellite video communication that is not scrambled or encrypted, and the
175     conduct in violation of this chapter is the private viewing of that communication and is not for
176     a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or
177     private commercial gain; or
178          (ii) radio communication that is transmitted on frequencies allocated under Subpart D,
179     Part 74, Rules of the Federal Communication Commission, that is not scrambled or encrypted
180     and the conduct in violation of this chapter is not for a tortious or illegal purpose or for
181     purposes of direct or indirect commercial advantage or private commercial gain.
182          (b) In an action under Subsection (11)(a):
183          (i) if the violation of this chapter is a first offense under this section and the person is
184     not found liable in a civil action under Section 77-23a-11, the state may seek appropriate
185     injunctive relief; or
186          (ii) if the violation of this chapter is a second or subsequent offense under this section,
187     or the person has been found liable in [any] a prior civil action under Section 77-23a-11, the
188     person is subject to a mandatory $500 civil penalty.
189          (c) The court may use any means within its authority to enforce an injunction issued
190     under Subsection (11)(b)(i), and shall impose a civil fine of not less than $500 for each
191     violation of the injunction.




Legislative Review Note
Office of Legislative Research and General Counsel