7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to privacy of electronic information or data.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ requires issuance of a search warrant to obtain certain electronic information or
15 ▸ addresses notification that electronic information or data was obtained;
16 ▸ provides for transmission of electronic information or data to a remote computing
17 service, including restrictions on government entities;
18 ▸ provides that the individual who transmits electronic information or data is the
19 presumed owner of the electronic information or data;
20 ▸ provides for the exclusion of electronic information or data obtained without a
21 warrant; and
22 ▸ makes technical and conforming changes.
23 Money Appropriated in this Bill:
25 Other Special Clauses:
27 Utah Code Sections Affected:
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
32 77-23c-101.1, Utah Code Annotated 1953
33 77-23c-104, Utah Code Annotated 1953
34 77-23c-105, Utah Code Annotated 1953
35 RENUMBERS AND AMENDS:
36 77-23c-101.2, (Renumbered from 77-23c-101, as enacted by Laws of Utah 2014,
37 Chapter 223)
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 77-23c-101.1 is enacted to read:
42 77-23c-101.1. Title.
43 This chapter is known as the "Electronic Information or Data Privacy Act."
44 Section 2. Section 77-23c-101.2, which is renumbered from Section 77-23c-101 is
45 renumbered and amended to read:
47 As used in this chapter:
48 (1) "Electronic communication service" means a service that provides to users of the
49 service the ability to send or receive wire or electronic communications.
50 (2) "Electronic device" means a device that enables access to or use of an electronic
51 communication service, remote computing service, or location information service.
58 (3) (a) "Electronic information or data" means information or data including a sign,
59 signal, writing, image, sound, or intelligence of any nature transmitted or stored in whole or in
60 part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.
61 (b) "Electronic information or data" includes the location information, stored data, or
62 transmitted data of an electronic device.
63 (c) "Electronic information or data" does not include:
64 (i) a wire or oral communication;
65 (ii) a communication made through a tone-only paging device; or
66 (iii) electronic funds transfer information stored by a financial institution in a
67 communications system used for the electronic storage and transfer of money.
68 (4) "Law enforcement agency" means an entity of the state or a political subdivision of
69 the state that exists to primarily prevent, detect, or prosecute crime and enforce criminal
70 statutes or ordinances.
72 device, concerning the location of an electronic device that, in whole or in part, is generated or
73 derived from or obtained by the operation of an electronic device.
75 service or other mapping, location, or directional information service.
76 (7) "Oral communication" means the same as that term is defined in Section 77-23a-3.
78 storage or processing services by means of an electronic communications system.
79 (9) "Transmitted data" means electronic information or data that is transmitted
81 (a) from an electronic device to another electronic device without the use of an
82 intermediate connection or relay; or
83 (b) from an electronic device to a nearby antenna.
84 (10) "Wire communication" means the same as that term is defined in Section
86 Section 3. Section 77-23c-102 is amended to read:
87 77-23c-102. Electronic information or data privacy -- Warrant required for
89 (1) (a) Except as provided in Subsection (2)[
90 investigation or prosecution, a law enforcement agency may not obtain, without a search
91 warrant issued by a court upon probable cause:
92 (i) the location information, stored data, or transmitted data of an electronic device
94 (ii) electronic information or data transmitted by the owner of the electronic
95 information or data to a remote computing service provider.
96 (b) Except as provided in Subsection (1)(c), a [
97 agency may not use, copy, or disclose, for any purpose, the location information, stored data,
99 remote computing service provider, that [
102 (i) is not the subject of the warrant; and
103 (ii) is collected as part of an effort to obtain the location information, stored data,
104 transmitted data of an electronic device, or electronic information or data provided by a remote
105 computing service provider that is the subject of the warrant in Subsection (1)(a).
106 (c) A [
107 transmitted data of an electronic device used to communicate with the electronic device that is
108 the subject of the warrant if the [
109 believes that the transmitted data is necessary to achieve the objective of the warrant.
110 (d) The electronic information or data described in Subsection (1)(b) shall be destroyed
111 in an unrecoverable manner by the [
112 reasonably possible after the electronic information or data is collected.
113 (2) (a) A [
114 without a warrant for an electronic device:
115 (i) in accordance with Section 53-10-104.5;
116 (ii) if the device is reported stolen by the owner;
117 (iii) with the informed, affirmative consent of the owner or user of the electronic
119 (iv) in accordance with a judicially recognized [
120 requirements; [
121 (v) if the owner has voluntarily and publicly disclosed the location information[
122 (vi) from the remote computing service provider if the remote computing service
123 provider voluntarily discloses the location information:
124 (A) under a belief that an emergency exists involving an imminent risk to an individual
125 of death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping,
126 or human trafficking; or
127 (B) that is inadvertently discovered by the remote computing service provider and
128 appears to pertain to the commission of a felony, or of a misdemeanor involving physical
129 violence, sexual abuse, or dishonesty.
130 (b) A law enforcement agency may obtain stored or transmitted data from an electronic
131 device, or electronic information or data transmitted by the owner of the electronic information
132 or data to a remote computing service provider, without a warrant:
133 (i) with the informed consent of the owner of the electronic device or electronic
134 information or data;
135 (ii) in accordance with a judicially recognized exception to warrant requirements;
136 (iii) in connection with a report forwarded by the National Center for Missing and
137 Exploited Children under 18 U.S.C. Sec. 2258A; or
138 (iv) subject to Subsection 77-23c-102(2)(a)(vi)(B), from a remote computing service
139 provider if the remote computing service provider voluntarily discloses the stored or
140 transmitted data as otherwise permitted under 18 U.S.C. Sec. 2702.
142 77-22-2.5 for the purposes enumerated in Section 77-22-2.5.
143 (3) An electronic communication service provider[
144 provider, the provider's officers, employees, agents, or other specified persons may not be held
145 liable for providing information, facilities, or assistance in [
146 reliance on the terms of the warrant issued under this section or without a warrant [
147 in accordance with Subsection (2).
154 (4) Nothing in this chapter limits or affects the disclosure of public records under Title
155 63G, Chapter 2, Government Records Access and Management Act.
156 (5) Nothing in this chapter affects the rights of an employer under Subsection
157 34-48-202(1)(e) or an administrative rule adopted under Section 63F-1-206.
158 Section 4. Section 77-23c-103 is amended to read:
159 77-23c-103. Notification required -- Delayed notification.
160 (1) (a) Except as provided in Subsection (2), a [
161 agency that executes a warrant pursuant to Subsection 77-23c-102(1)(a) or 77-23c-104(3) shall,
162 within 14 days after the day on which the [
163 that is the subject of the warrant is obtained by the law enforcement agency, issue a notification
164 to the owner of the electronic device or electronic information or data specified in the warrant
165 that states:
169 data [
172 application; and
174 (b) The notification requirement under Subsection (1)(a) is not triggered until the
175 owner of the electronic device or electronic information or data specified in the warrant is
176 known, or could be reasonably identified, by the law enforcement agency.
177 (2) A [
178 Subsection 77-23c-102(1)(a) or 77-23c-104(3) may submit a request, and the court may grant
179 permission, to delay the notification required by Subsection (1) for a period not to exceed 30
180 days, if the court determines that there is [
181 notification may:
182 (a) endanger the life or physical safety of an individual;
183 (b) cause a person to flee from prosecution;
184 (c) lead to the destruction of or tampering with evidence;
185 (d) intimidate a potential witness; or
186 (e) otherwise seriously jeopardize an investigation or unduly delay a trial.
187 (3) (a) When a delay of notification is granted under Subsection (2) and upon
188 application by the [
189 extensions of up to 30 days each.
190 (b) Notwithstanding Subsection (3)(a), when a delay of notification is granted under
191 Subsection (2), and upon application by a law enforcement agency, the court may grant an
192 additional extension of up to 60 days if the court determines that a delayed notification is
193 justified because the investigation involving the warrant:
194 (i) is interstate in nature and sufficiently complex; or
195 (ii) is likely to extend up to or beyond an additional 60 days.
196 (4) Upon expiration of the period of delayed notification granted under Subsection (2)
197 or (3), the [
198 first-class mail, or by other means if delivery is impracticable, to the owner of the electronic
199 device or electronic information or data a copy of the warrant together with notice that:
200 (a) states with reasonable specificity the nature of the law enforcement inquiry; and
201 (b) contains:
202 (i) the information described in Subsections (1)(a)(i) through [
203 (ii) a statement that notification of the search was delayed;
204 (iii) the name of the court that authorized the delay of notification; and
205 (iv) a reference to the provision of this chapter that allowed the delay of notification.
206 (5) A [
207 of the electronic device or electronic information or data if the owner is located outside of the
208 United States.
209 Section 5. Section 77-23c-104 is enacted to read:
210 77-23c-104. Third party electronic information or data.
211 (1) As used in this section, "subscriber record" means a record or information of a
212 provider of an electronic communication service or remote computing service that reveals the
213 subscriber's or customer's:
214 (a) name;
215 (b) address;
216 (c) local and long distance telephone connection record, or record of session time and
218 (d) length of service, including the start date;
219 (e) type of service used;
220 (f) telephone number, instrument number, or other subscriber or customer number or
221 identification, including a temporarily assigned network address; and
222 (g) means and source of payment for the service, including a credit card or bank
223 account number.
224 (2) Except as provided in Chapter 22, Subpoena Powers for Aid of Criminal
225 Investigation and Grants of Immunity, a law enforcement agency may not obtain, use, copy, or
226 disclose a subscriber record.
227 (3) A law enforcement agency may not obtain, use, copy, or disclose, for a criminal
228 investigation or prosecution, any record or information, other than a subscriber record, of a
229 provider of an electronic communication service or remote computing service related to a
230 subscriber or customer without a warrant.
231 (4) Notwithstanding Subsections (2) and (3), a law enforcement agency may obtain,
232 use, copy, or disclose a subscriber record, or other record or information related to a subscriber
233 or customer, without a warrant:
234 (a) with the informed, affirmed consent of the subscriber or customer;
235 (b) in accordance with a judicially recognized exception to warrant requirements;
236 (c) if the subscriber or customer voluntarily discloses the record in a manner that is
237 publicly accessible; or
238 (d) if the provider of an electronic communication service or remote computing service
239 voluntarily discloses the record:
240 (i) under a belief that an emergency exists involving the imminent risk to an individual
242 (A) death;
243 (B) serious physical injury;
244 (C) sexual abuse;
245 (D) live-streamed sexual exploitation;
246 (E) kidnapping; or
247 (F) human trafficking;
248 (ii) that is inadvertently discovered by the provider, if the record appears to pertain to
249 the commission of:
250 (A) a felony; or
251 (B) a misdemeanor involving physical violence, sexual abuse, or dishonesty; or
252 (iii) subject to Subsection 77-23c-104(4)(d)(ii), as otherwise permitted under 18 U.S.C.
253 Sec. 2702.
254 (5) A provider of an electronic communication service or remote computing service, or
255 the provider's officers, employees, agents, or other specified persons may not be held liable for
256 providing information, facilities, or assistance in good faith reliance on the terms of a warrant
257 issued under this section, or without a warrant in accordance with Subsection (3).
258 Section 6. Section 77-23c-105 is enacted to read:
259 77-23c-105. Exclusion of records.
260 All electronic information or data and records of a provider of an electronic
261 communications service or remote computing service pertaining to a subscriber or customer
262 that are obtained in violation of the provisions of this chapter shall be subject to the rules
263 governing exclusion as if the records were obtained in violation of the Fourth Amendment to
264 the United States Constitution and Utah Constitution, Article I, Section 14.