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7 LONG TITLE
8 Committee Note:
9 The Judiciary Interim Committee recommended this bill.
10 General Description:
11 This bill modifies provisions related to privacy of electronic information or data.
12 Highlighted Provisions:
13 This bill:
14 ▸ defines terms;
15 ▸ requires issuance of a search warrant to obtain certain electronic information or
16 data;
17 ▸ addresses notification that electronic information or data was obtained;
18 ▸ provides for transmission of electronic information or data to a remote computing
19 service, including restrictions on government entities;
20 ▸ provides that the individual who transmits electronic information or data is the
21 presumed owner of the electronic information or data; and
22 ▸ makes technical and conforming amendments.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 77-23c-102, as last amended by Laws of Utah 2016, Chapter 161
30 77-23c-103, as enacted by Laws of Utah 2014, Chapter 223
31 ENACTS:
32 77-23c-101.1, Utah Code Annotated 1953
33 77-23c-104, Utah Code Annotated 1953
34 RENUMBERS AND AMENDS:
35 77-23c-101.2, (Renumbered from 77-23c-101, as enacted by Laws of Utah 2014,
36 Chapter 223)
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 77-23c-101.1 is enacted to read:
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41 77-23c-101.1. Title.
42 This chapter is known as the "Electronic Information or Data Privacy Act."
43 Section 2. Section 77-23c-101.2, which is renumbered from Section 77-23c-101 is
44 renumbered and amended to read:
45 [
46 As used in this chapter:
47 (1) "Electronic communication service" means a service that provides to users of the
48 service the ability to send or receive wire or electronic communications.
49 (2) "Electronic device" means a device that enables access to or use of an electronic
50 communication service, remote computing service, or location information service.
51 (3) (a) "Electronic information or data" means information or data including a sign,
52 signal, writing, image, sound, or intelligence of any nature transmitted or stored in whole or in
53 part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.
54 (b) "Electronic information or data" includes the location information, stored data, or
55 transmitted data of an electronic device.
56 (c) "Electronic information or data" does not include:
57 (i) a wire or oral communication;
58 (ii) a communication made through a tone-only paging device;
59 (iii) a communication from a tracking device; or
60 (iv) electronic funds transfer information stored by a financial institution in a
61 communications system used for the electronic storage and transfer of money.
62 [
63 education institution, a local district, a special service district, or any other political subdivision
64 of the state or an administrative subunit of any political subdivision, including a law
65 enforcement entity or any other investigative entity, agency, department, division, bureau,
66 board, or commission, or an individual acting or purporting to act for or on behalf of a state or
67 local agency.
68 [
69 electronic device that, in whole or in part, is generated or derived from or obtained by the
70 operation of an electronic device.
71 [
72 service or other mapping, location, or directional information service.
73 [
74 processing services by means of an electronic communications system.
75 Section 3. Section 77-23c-102 is amended to read:
76 77-23c-102. Electronic information or data privacy -- Warrant required for
77 disclosure.
78 (1) (a) Except as provided in Subsection (2), a government entity may not obtain
79 without a search warrant issued by a court upon probable cause:
80 (i) the location information, stored data, or transmitted data of an electronic device
81 [
82 (ii) electronic information or data transmitted by the owner of the electronic
83 information or data to a remote computing service.
84 (b) Except as provided in Subsection (1)(c), a government entity may not use, copy, or
85 disclose, for any purpose, the location information, stored data, [
86 electronic device, or electronic information or data provided by a remote computing service,
87 that is not the subject of the warrant that is collected as part of an effort to obtain the [
88 electronic information[
89 subject of the warrant in Subsection (1)(a).
90 (c) A government entity may use, copy, or disclose the transmitted electronic
91 information or data of an electronic device used to communicate with the electronic device that
92 is the subject of the warrant if the government entity reasonably believes that the transmitted
93 electronic information or data is necessary to achieve the objective of the warrant.
94 (d) The electronic information or data described in Subsection (1)(b) shall be destroyed
95 in an unrecoverable manner by the government entity as soon as reasonably possible after the
96 electronic information or data is collected.
97 (2) (a) A government entity may obtain location information without a warrant for an
98 electronic device:
99 (i) in accordance with Section 53-10-104.5;
100 (ii) if the device is reported stolen by the owner;
101 (iii) with the informed, affirmative consent of the owner or user of the electronic
102 device;
103 (iv) in accordance with judicially recognized exceptions to warrant requirements; or
104 (v) if the owner has voluntarily and publicly disclosed the location information.
105 (b) A prosecutor may obtain a judicial order as [
106 77-22-2.5 for the purposes enumerated in Section 77-22-2.5.
107 (3) An electronic communication service provider or remote computing service
108 provider, its officers, employees, agents, or other specified persons may not be held liable for
109 providing information, facilities, or assistance in accordance with the terms of the warrant
110 issued under this section or without a warrant pursuant to Subsection (2).
111 (4) (a) Notwithstanding Subsections (1) through (3), a government entity may receive
112 and [
113 electronic device from a non-government entity as long as the electronic information or data
114 contains no information that includes, or may reveal, the identity of an individual.
115 (b) Electronic information or data collected in accordance with this [
116 Subsection (4) may not be used for investigative purposes by a law enforcement agency.
117 Section 4. Section 77-23c-103 is amended to read:
118 77-23c-103. Notification required -- Delayed notification.
119 (1) Except as provided in Subsection (2), a government entity that executes a warrant
120 pursuant to Subsection 77-23c-102(1)(a) shall, within 14 days after the day on which the
121 operation concludes, issue a notification to the owner of the electronic device or electronic
122 information or data specified in the warrant that states:
123 (a) that a warrant was applied for and granted;
124 (b) the kind of warrant issued;
125 (c) the period of time during which the collection of the electronic information or data
126 [
127 (d) the offense specified in the application for the warrant;
128 (e) the identity of the government entity that filed the application; and
129 (f) the identity of the judge who issued the warrant.
130 (2) A government entity seeking a warrant pursuant to Subsection 77-23c-102(1)(a)
131 may submit a request, and the court may grant permission, to delay the notification required by
132 Subsection (1) for a period not to exceed 30 days, if the court determines that there is probable
133 cause to believe that the notification may:
134 (a) endanger the life or physical safety of an individual;
135 (b) cause a person to flee from prosecution;
136 (c) lead to the destruction of or tampering with evidence;
137 (d) intimidate a potential witness; or
138 (e) otherwise seriously jeopardize an investigation or unduly delay a trial.
139 (3) When a delay of notification is granted under Subsection (2) and upon application
140 by the government entity, the court may grant additional extensions of up to 30 days each.
141 (4) Upon expiration of the period of delayed notification granted under Subsection (2)
142 or (3), the government entity shall serve upon or deliver by first-class mail to the owner of the
143 electronic device a copy of the warrant together with notice that:
144 (a) states with reasonable specificity the nature of the law enforcement inquiry; and
145 (b) contains:
146 (i) the information described in Subsections (1)(a) through (f);
147 (ii) a statement that notification of the search was delayed;
148 (iii) the name of the court that authorized the delay of notification; and
149 (iv) a reference to the provision of this chapter that allowed the delay of notification.
150 (5) A government entity is not required to notify the owner of the electronic device or
151 electronic information or data if the owner is located outside of the United States.
152 Section 5. Section 77-23c-104 is enacted to read:
153 77-23c-104. Third party electronic information or data.
154 (1) An individual who transmits electronic information or data to a remote computing
155 service is presumed to be the owner of the electronic information or data.
156 (2) The individual in Subsection (1) maintains a reasonable expectation of privacy in
157 the electronic information or data stored by the remote computing service.
158 (3) (a) Pursuant to Subsection 77-23c-102(1), a government entity may not obtain, use,
159 copy, or disclose a person's electronic information or data stored by a remote computing service
160 without first obtaining a warrant.
161 (b) Notwithstanding Subsection (3)(a), a government entity may obtain, use, copy, or
162 disclose a person's electronic information or data stored by a remote computing service without
163 a warrant:
164 (i) with the informed, affirmative consent of the owner of the electronic information or
165 data; or
166 (ii) in accordance with judicially recognized exceptions to warrant requirements.