Massachusetts 2025-2026 Regular Session

Massachusetts House Bill H2027 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3788 FILED ON: 1/17/2025
3	3	HOUSE . . . . . . . . . . . . . . . No. 2027
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Erika Uyterhoeven
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to protect electronic privacy.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Erika Uyterhoeven27th Middlesex1/17/2025Carmine Lawrence Gentile13th Middlesex1/21/2025 1 of 14
16	16	HOUSE DOCKET, NO. 3788 FILED ON: 1/17/2025
17	17	HOUSE . . . . . . . . . . . . . . . No. 2027
18	18	By Representative Uyterhoeven of Somerville, a petition (accompanied by bill, House, No.
19	19	2027) of Erika Uyterhoeven and Carmine Lawrence Gentile relative to electronic privacy under
20	20	certain search warrants. The Judiciary.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Fourth General Court
24	24	(2025-2026)
25	25	_______________
26	26	An Act to protect electronic privacy.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. Chapter 276 of the General Laws, as appearing in the 2022 official edition,
30	30	2is hereby amended by striking Section 1B and inserting in its place the following:-
31	31	3 Section 1B. (a) As used in this section, the following words shall have the following
32	32	4meanings:
33	33	5 ''Adverse result'', occurs when notification of the existence of a search warrant results in:
34	34	6 (1) danger to the life or physical safety of an individual;
35	35	7 (2) a flight from prosecution;
36	36	8 (3) the destruction of or tampering with evidence;
37	37	9 (4) the intimidation of a potential witness or witnesses; or
38	38	10 (5) serious jeopardy to an investigation or undue delay of a trial. 2 of 14
39	39	11 "Cell site simulator device", a device that transmits or receives radio waves to simulate an
40	40	12electronic device, cell tower, cell site, or service for the purpose of conducting one or more of the
41	41	13following operations: (i) identifying, locating, or tracking the movements of an electronic device;
42	42	14(ii) intercepting, obtaining, accessing, or forwarding the communications, stored data, or
43	43	15metadata of an electronic device; (iii) affecting the hardware or software operations or functions
44	44	16of an electronic device; (iv) forcing transmissions from or connections to an electronic device; or
45	45	17(v) denying an electronic device access to other electronic devices, communications protocols, or
46	46	18services.
47	47	19 ''Electronic communication services'', shall be construed in accordance with sections
48	48	202701 to 2711 Title 18, of the United States Code. This definition shall not apply to corporations
49	49	21that do not provide electronic communication services to the general public.
50	50	22 “Electronic device”, any device that enables access to, or use of, an electronic
51	51	23communication service, remote computing service or location information service.
52	52	24 ''Foreign corporation'', any corporation or other entity that makes a contract or engages in
53	53	25a terms of service agreement with a resident of the commonwealth to be performed in whole or
54	54	26in part by either party in the commonwealth. The making of the contract or terms of service
55	55	27agreement shall be considered to be the agreement of the foreign corporation that a search
56	56	28warrant or subpoena which has been properly served on it has the same legal force and effect as
57	57	29if served personally within the commonwealth.
58	58	30 “Location information”, any information concerning the location of an electronic device
59	59	31that, in whole or in part, is generated by or derived from the device or any of its applications. 3 of 14
60	60	32 “Location information service”, a global positioning service or other mapping, locational
61	61	33or directional information service.
62	62	34 ''Massachusetts corporation'', any corporation or other entity that is subject to chapter 155
63	63	35or chapter 156B.
64	64	36 “Metadata”, information, other than communications content, which is necessary to or
65	65	37associated with the provision of electronic communication services, remote computing services,
66	66	38or location information services, including but not limited to information about the source or
67	67	39destination of electronic communications, date and time of electronic communications, delivery
68	68	40instructions, account information, internet protocol address, quantum of data, data or file type, or
69	69	41data tags.
70	70	42 ''Properly served'', delivery of a search warrant or subpoena by hand, by United States
71	71	43mail, by commercial delivery service, by facsimile or by any other manner to any officer of a
72	72	44corporation or its general manager in the commonwealth, to any natural person designated by it
73	73	45as agent for the service of process, or if such corporation has designated a corporate agent, to any
74	74	46person named in the latest certificate filed pursuant to section 15.03 of chapter 156D.
75	75	47 ''Remote computing services'', shall be construed in accordance with sections 2701 to
76	76	482711, inclusive, of Title 18, of the United States Code. This definition shall not apply to
77	77	49corporations that do not provide those services to the general public.
78	78	50 ''Subpoena'', a grand jury or trial subpoena issued in the course of a criminal proceeding
79	79	51or an administrative subpoena issued pursuant to section 17B of chapter 271. 4 of 14
80	80	52 (b) A government office or public official may obtain or access the following information
81	81	53only (1) with a person’s informed consent, (2) pursuant to a warrant issued by a judicial officer
82	82	54upon an application demonstrating probable cause, or (3) acting in accordance with a legally
83	83	55recognized exception to the warrant requirement:
84	84	56 (i) data stored by or on behalf of a user of those services;
85	85	57 (ii) any content of communications transmitted by an electronic device or stored by those
86	86	58services; or
87	87	59 (iii) location information.
88	88	60 (c) A government office or public official may use a cell site simulator device to obtain or
89	89	61access information, including metadata, only (1) with the informed consent of the user of the
90	90	62targeted electronic device, (2) pursuant to a probable cause warrant issued upon an application
91	91	63specifically stating that use of a cell site simulator is sought, or (3) acting in accordance with a
92	92	64legally recognized exception to the warrant requirement.
93	93	65 (d) Upon complaint on oath that the complainant believes that (1) particular identified
94	94	66records or information are in the actual or constructive custody of a Massachusetts or foreign
95	95	67corporation providing electronic communication services, remote computing services, or location
96	96	68information services, and (2) such records or information constitute evidence of or the means or
97	97	69instrumentalities of the commission of a specified criminal offense under the laws of the
98	98	70commonwealth, a justice of the superior court may, if satisfied that there is probable cause for
99	99	71such beliefs, issue a warrant identifying those records to be sought and authorizing the person
100	100	72making application for the warrant to properly serve the warrant upon the corporation and to take
101	101	73all other actions prescribed by this section. 5 of 14
102	102	74 (e) Upon complaint on oath that the complainant believes that the use of a cell site
103	103	75simulator device will lead to (i) evidence of or the means or instrumentalities of the commission
104	104	76of a specified criminal offense under the laws of the commonwealth or (ii) the location of a
105	105	77person whom there is probable cause to believe has committed, is committing, or is about to
106	106	78commit a crime, a justice of the superior court may, if satisfied that probable cause has been
107	107	79established for such belief, issue a warrant authorizing that particular information be sought from
108	108	80a specified electronic device or, if the complainant is unable to specify the particular device,
109	109	81from electronic devices at a specified location, stating the duration for authorized use of the cell
110	110	82site simulator device, and directing the person authorized by the warrant to take all other actions
111	111	83prescribed by this section.
112	112	84 A warrant application to use a cell site simulator device shall: (i) specify sufficient facts
113	113	85to demonstrate that alternative methods of investigation and surveillance with less incidental
114	114	86impact on non-targeted parties and electronic devices are inadequate to achieve the same
115	115	87purposes; and (ii) identify the law enforcement agency that owns the cell site simulator device, if
116	116	88different from the law enforcement agency making the application.
117	117	89 If the application seeks authority to use a cell site simulator device to intercept the
118	118	90contents of oral communications, authorization may be granted only in compliance with the
119	119	91procedural and substantive requirements contained in section 99 of chapter 272 and federal law
120	120	92concerning wiretaps.
121	121	93 (f) Search warrants issued under this section shall designate the person, corporation or
122	122	94other entity, if any, in possession of the records or data sought, and shall describe, with
123	123	95particularity, the information sought and to be provided. They shall be issued in the form and 6 of 14
124	124	96manner prescribed in sections 2A½ and 2B, insofar as they are applicable, and shall be directed
125	125	97to the law enforcement officer or government office making application for the warrant.
126	126	98 (g) The following provisions shall apply to any search warrant issued under this section
127	127	99and to any subpoena issued in the course of a criminal investigation or proceeding directed to a
128	128	100Massachusetts or foreign corporation that provides electronic communication services, remote
129	129	101computing services or location information services:
130	130	102 (1) when properly served with a search warrant issued by any court of the commonwealth
131	131	103or justice pursuant to this section or a subpoena, a corporation subject to this section shall
132	132	104provide all records sought pursuant to that warrant or subpoena within 14 days of receipt,
133	133	105including those records maintained or located outside the commonwealth;
134	134	106 (2) if the applicant makes a showing and the court or justice finds that failure to produce
135	135	107records within less than 14 days would cause an adverse result, a warrant may require production
136	136	108of records within less than 14 days;
137	137	109 (3) a court or justice may reasonably extend the time required for production of the
138	138	110records upon finding that the corporation has shown good cause for that extension and that an
139	139	111extension of time would not cause an adverse result;
140	140	112 (4) a corporation seeking to quash a warrant or subpoena served on it pursuant to this
141	141	113section shall seek relief from the court that issued the warrant or the court which has jurisdiction
142	142	114over the subpoena within the time required for production of records pursuant to this section. The
143	143	115court shall hear and decide such motion not later than 14 days after the motion is filed; 7 of 14
144	144	116 (5) in the case of an administrative subpoena issued by the attorney general, the superior
145	145	117court of Suffolk county shall have jurisdiction and in the case of an administrative subpoena
146	146	118issued by a district attorney, the superior court in any county in which the district attorney
147	147	119maintains an office shall have jurisdiction; and
148	148	120 (6) the corporation shall verify the authenticity of records that it produces by providing an
149	149	121affidavit from the person in custody of those records certifying that they are true and complete.
150	150	122 (h) A Massachusetts corporation that provides electronic communication services or
151	151	123remote computing services, when served with a warrant or subpoena issued by another state to
152	152	124produce records that would reveal the identity of the customers using those services, data stored
153	153	125by, or on behalf of the customer, the customer's usage of those services, the recipient or
154	154	126destination of communications sent to or from those customers, or the content of those
155	155	127communications, shall produce those records as if that warrant or subpoena had been issued
156	156	128under the law of the commonwealth.
157	157	129 (i) No cause of action shall lie against any foreign or Massachusetts corporation subject
158	158	130to this section, its officers, employees, agents or other persons for providing records,
159	159	131information, facilities or assistance in accordance with the terms of a warrant or subpoena issued
160	160	132pursuant to this section.
161	161	133 (j) A law enforcement officer or agency authorized to use a cell site simulator device in
162	162	134accordance with this section shall: (i) take all steps necessary to limit the collection of any
163	163	135information or metadata to the target specified in the application and warrant authorization; (ii)
164	164	136take all steps necessary to permanently delete any information or metadata collected from any
165	165	137person or persons not specified in the warrant immediately following such collection and ensure 8 of 14
166	166	138that such information or metadata is not used, retained, or transmitted for any purpose
167	167	139whatsoever; and (iii) delete any information or metadata collected from the person or persons
168	168	140specified in the warrant authorization within thirty days if there is no longer probable cause to
169	169	141support the belief that such information or metadata is evidence of a crime.
170	170	142 (k) Not later than 7 days after information is obtained by a law enforcement officer or
171	171	143government office pursuant to a warrant under this section, that officer or office shall serve upon,
172	172	144or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated
173	173	145to be effective as specified by the court issuing the warrant, to the customer or subscriber, or user
174	174	146of an electronic device targeted by a cell site simulator device, a copy of the warrant, a copy of
175	175	147the application for the warrant and notice that informs the customer, subscriber, or user of the
176	176	148following:
177	177	149 (1)the nature of the law enforcement inquiry with reasonable specificity;
178	178	150 (2)in the case of information maintained for the customer or subscriber by the provider of
179	179	151an electronic communications service, remote computing service or location information service,
180	180	152that such information was requested by or supplied to that government office or public official, a
181	181	153description of that information, and the dates on which the request was made and on which the
182	182	154information was supplied;
183	183	155 (3)in the case of information obtained or accessed by means of a cell site simulator
184	184	156device, a description of that information, and the dates, times, durations, and locations of the
185	185	157search;
186	186	158 (4)whether notification of the customer, subscriber, or user was delayed under subsection
187	187	159(j); and 9 of 14
188	188	160 (5)which court made the certification or determination under which that delay was made,
189	189	161if applicable.
190	190	162 (l) A government office or public official may include in its application for a warrant a
191	191	163request for an order delaying the notification required under subsection (k) for a period not to
192	192	164exceed 90 days, and the court may issue the order if it determines there is reason to believe that
193	193	165notification of the existence of the warrant may have an adverse result. Upon expiration of any
194	194	166period of delay granted under this subsection, the government office or public official shall
195	195	167provide the customer or subscriber a copy of the warrant together with notice required under, and
196	196	168by the means described in, subsection (k).
197	197	169 A government office or public official may include in its application for a warrant a
198	198	170request for an order directing a corporation or other entity to which a warrant is directed not to
199	199	171notify any other person of the existence of the warrant for a period of not more than 90 days, and
200	200	172the court may issue the order if the court determines that there is reason to believe that
201	201	173notification of the existence of the warrant will have an adverse result.
202	202	174 The court may, upon application, grant 1 or more extensions of orders delaying
203	203	175notification for an additional 90 days if the court determines that there is reason to believe that
204	204	176notification of the existence of the warrant will have an adverse result.
205	205	177 (m) Notwithstanding any general or special law to the contrary, a government office or
206	206	178public official may obtain information described in subsections (b) or (c):
207	207	179 (1)with the specific contemporaneous consent of the owner or user of the electronic
208	208	180communications device concerned; 10 of 14
209	209	181 (2)in order to respond to the user’s call for emergency services; or
210	210	182 (3)if it reasonably believes that an emergency involving immediate danger of death or
211	211	183serious physical injury to any person requires obtaining without delay information relating to the
212	212	184emergency; provided, however, that the request is narrowly tailored to address the emergency
213	213	185and subject to the following limitations:
214	214	186 (i)the request shall document the factual basis for believing that an emergency involving
215	215	187immediate danger of death or serious physical injury to a person requires obtaining without delay
216	216	188of the information relating to the emergency; and
217	217	189 (ii) not later than 48 hours after the government office obtains access to records, it shall
218	218	190file with the appropriate court a signed, sworn statement of a supervisory official of a rank
219	219	191designated by the head of the office setting forth the grounds for the emergency access.
220	220	192 (n) On the second Friday of January of each calendar year, any judge issuing or denying a
221	221	193warrant under this section during the preceding calendar year shall report on each such warrant
222	222	194to the office of court management within the trial court:
223	223	195 (1)the name of the agency making the application;
224	224	196 (2)the offense specified in the warrant or application therefor;
225	225	197 (3)the nature of the information sought;
226	226	198 (4)if the warrant application sought authorization to obtain or access information by
227	227	199means of a cell site simulator device; 11 of 14
228	228	200 (5)if the warrant application sought authorization to obtain or access information from a
229	229	201corporation or other entity, the name of that entity;
230	230	202 (6)whether the warrant was granted as applied for, was modified or was denied;
231	231	203 (7)the period of disclosures or access authorized by the warrant;
232	232	204 (8)the number and duration of any extensions of the warrant; and
233	233	205 (9)any order directing delayed notification of the warrant’s existence.
234	234	206 In June of each year, the court administrator in the office of court management within the
235	235	207trial court shall transmit to the legislature a full and complete report concerning the number of
236	236	208applications for warrants authorizing or requiring the disclosure of or access to information
237	237	209under this section. The reports shall include a summary and analysis of the data required to be
238	238	210filed with that office. The reports shall be filed with the offices of the clerk of the house and the
239	239	211senate and shall be public records. The court administrator in the office of court management
240	240	212within the trial court shall issue guidance regarding the form of the reports.
241	241	213 (o) Except in a judicial proceeding alleging a violation of this section, no information
242	242	214obtained in violation of this section and no information provided beyond the scope of the
243	243	215materials authorized to be obtained shall be admissible in any criminal, civil, administrative or
244	244	216other proceeding.
245	245	217 (p) The requirements of this section shall apply to all state and local law enforcement
246	246	218officers operating in the commonwealth, whether said officers are assigned to state and local law
247	247	219enforcement operations exclusively, or to joint task force or other collaborative operations with
248	248	220federal law enforcement agencies. 12 of 14
249	249	221 SECTION 2. Chapter 276 is hereby amended by inserting after section 2A the following
250	250	222section:-
251	251	223 Section 2A½. (a) A warrant issued pursuant to section 1B for records or data from a
252	252	224corporation providing electronic communication services, remote computing services or location
253	253	225information services shall be in substantially the following form:
254	254	226 THE COMMONWEALTH OF MASSACHUSETTS.
255	255	227 (COUNTY), ss. (NAME) COURT.
256	256	228 To the Sheriffs of our several counties, or their deputies, any State Police Officer, or a
257	257	229Police Officer of any city or town in the Commonwealth.
258	258	230 Proof by affidavit having been made this day before (name and office of person
259	259	231authorized to issue warrant) by (names of person or persons whose affidavits have been taken)
260	260	232that there is probable cause for believing that certain records or data are in the in the possession
261	261	233of (identify corporation or other entity) and that those records or data constitute evidence of or
262	262	234the means or instrumentalities of the commission of (specified criminal offense under the laws of
263	263	235the commonwealth).
264	264	236 We therefore authorize you to present this warrant to (identify corporation or other
265	265	237entity), which warrant shall operate as an order for immediate disclosure of the following records
266	266	238or data:
267	267	239 (description of particular records or data),
268	268	240 and if any such records or data are disclosed to bring it before (court having jurisdiction)
269	269	241at (name of court and location). 13 of 14
270	270	242 Dated at (city or town) this __________ day of __________, (insert year).
271	271	243 Justice of the Superior Court
272	272	244 (b) A warrant issued pursuant to section 1B authorizing the use of a cell site simulator
273	273	245device shall be in substantially the following form:
274	274	246 THE COMMONWEALTH OF MASSACHUSETTS.
275	275	247 (COUNTY), ss. (NAME) COURT.
276	276	248 To the Sheriff, or their deputy, State Police Officer, or municipal Police Officer who has
277	277	249made this complaint on oath.
278	278	250 Proof by affidavit having been made this day before (name and office of person
279	279	251authorized to issue warrant) by (names of person or persons whose affidavits have been taken)
280	280	252that there is probable cause for believing that the use of a cell site simulator device will lead to
281	281	253evidence of or the means or instrumentalities of the commission of (specified criminal offense
282	282	254under the laws of the commonwealth) or the location of a person whom there is probable cause
283	283	255to believe has committed, is committing, or is about to commit (specified criminal offense under
284	284	256the laws of the commonwealth).
285	285	257 We therefore authorize you to obtain or access by means of a cell site simulator device,
286	286	258the following records or data:
287	287	259 (description of particular records or data),
288	288	260 and if any such records or data are disclosed to bring it before (court having jurisdiction)
289	289	261at (name of court and location). 14 of 14
290	290	262 Dated at (city or town) this __________ day of __________, (insert year).
291	291	263 Justice of the Superior Court
292	292	264 SECTION 3. Section 2B of said chapter 276, as appearing in the 2022 official edition, is
293	293	265hereby amended by striking clauses 3 and 4 of the model affidavit and inserting in place thereof
294	294	266the following:-
295	295	267 3. Based upon the foregoing reliable information (and upon my personal knowledge)
296	296	268there is probable cause to believe that the property, records or data hereinafter described (has
297	297	269been stolen, or is being concealed, or constitutes evidence of a particular offense, etc.) and may
298	298	270be found (in the possession of A. B. or any other person or corporation) at premises (identify).
299	299	271 4. The (property, records, or data) for which I seek issuance of a search warrant is the
300	300	272following: (here describe the property, records, or data as particularly as possible).