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