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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
SENATE BILL 852 By: Dahm
AS INTRODUCED
An Act relating to electronic information privacy;
creating the Electronic Communic ation and Device
Privacy Act; providing short title; def ining terms;
prohibiting a government entity from access or
compelling production of certain electronic
information; authorizing compelled production of
certain information under certain circumstances;
stating special circumstances; allowing physical
interaction with certain devices under warrants and
consent; providing for certain g ood faith and
emergency access; providing for access to devices in
correctional facility; requiring warrant for
information to comply with certain provisions;
stating provisions; establishing court procedures for
warrants and petitions; stating authority; requi ring
destruction of certain i nformation within certain
time; providing for emerge ncy access to electronic
device information; construing authority for other
processes to secure electronic information; requiring
notification for accessing electronic information;
providing for delayed notification under certain
circumstances; providing f or extension of delayed
notification; directing copy of all electronic
information be notif ied to targets of warrants;
directing certain information be submitted to the
Department of Public Safety if ther e is no identified
target for warrant; providing for publication and
redacting of names on c ertain reports; construing
service providers ability to disclose information;
providing for suppression of evidence; requiring
compliance with state and federal law and procedure
in trial; authorizing the Attorney General to
institute civil action; authorizing petition for
court order to avoid access to el ectronic information
in violation of law; granting immunity for certain
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corporation officers for release of certain
information; providing for codification; and
providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1265 of Title 22, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the "Electronic
Communication and Device Privacy Act ".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1265.1 of Title 22, unless there
is created a duplication in numbering, reads as follows:
For purposes of this act, the following definitions apply:
1. "Adverse result" means any of the following:
a. danger to the life or physical safety of an
individual,
b. flight from prosecution ,
c. destruction of or tampering with evidence,
d. intimidation of potential witnesses, or
e. serious jeopardy to an investigation or undue delay of
a trial;
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2. "Authorized possessor " means the possessor of an electronic
device when that person is the owner of the device or has been
authorized to possess the device by th e owner of the device;
3. "Electronic communication " means the transfer of signs,
signals, writings, images, sounds, data or intelligence of any
nature in whole or in part by a wire, radio, electromagneti c,
photoelectric, or photo-optical system;
4. "Electronic communication information " means any information
about an electronic communication or the use of an electronic
communication service including, but not limit ed to, the contents,
sender, recipients, format, or location of the sender or recipients
at any point during the communication, the time or date the
communication was created, sent, or received or any information
pertaining to any individual or device part icipating in the
communication including , but not limited to, an IP address.
Electronic communication information does not include subscriber
information as defined in this act;
5. "Electronic communication service " means a service that
provides to its subscribers or users the ability to send or receive
electronic communications including any service that acts as an
intermediary in the transmission of electronic communications, or
stores electronic communication information;
6. "Electronic device" means a device that stores, generates or
transmits information in electronic form;
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7. "Electronic device information" means any information stored
on or generated through the operation of an electronic device
including the current and prior locations of the dev ice.
8. "Electronic information " means electronic communication
information or electronic device information;
9. "Government entity" means a department or agency of the
state or a political subdivision thereof, or an individual acting
for or on behalf of the state or a political subdivision th ereof;
10. "Service provider" means a person or en tity offering an
electronic communication service;
11. "Specific consent" means consent provided directly to the
government entity seeking information including, bu t not limited to,
when the government en tity is the addressee or intended recipient or
a member of the intended audience of an electronic communication.
Specific consent does not require that the originator of the
communication have actual knowledge that an addressee, intended
recipient or member of the specific audience is a government entity;
and
12. "Subscriber information " means the name, street address,
telephone number, email address or similar contact information
provided by the subscriber to a service provider to establish or
maintain an account or communication channel, a subscriber or
account number or identifier, the length of service, and the types
of services used by a user of or subscriber to a service provider.
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SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1265.2 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. Except as provided in this section, a government entity
shall not do any of the fol lowing:
1. Compel the production of or access to electronic
communication information from a service provider;
2. Compel the production of or access to electronic device
information from any person or entity other than the aut horized
possessor of the dev ice;
3. Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
This section does not prohibit the intended recipient of an
electronic communication from voluntarily disclosing electro nic
communication information conc erning that communication to a
government entity;
B. A government entity may compel the production of or access
to electronic communication information from a service provider, or
compel the production of or access to ele ctronic device information
from any person or entity other than the authorized posses sor of the
device only under the following circumstances:
1. Pursuant to a lawful warrant issued pursuant to the Oklahoma
Statutes or federal law and subject to subsectio n D of this section;
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2. Pursuant to a wiretap order issued pursuant to the Oklahoma
Statutes or federal law;
3. Pursuant to an order for electronic reader records issued
pursuant to Oklahoma Statutes or federal law; or
4. Pursuant to a subpoena issued p ursuant to existing state law
provided that the information is not sought for the pur pose of
investigating or prosecuting a criminal offense, and that compelling
the production of or access to the information via the subpoena is
not otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any au thority under state law
to compel the production of or access to electronic information.
C. A government entity may access electronic device information
by means of physical interaction or electronic comm unication with
the device only as follows:
1. Pursuant to a warrant issued pursuant to the Oklahoma
Statutes or federal law and subject to subsection D of this section;
2. Pursuant to a wiretap order issued pursuant to the Oklahoma
Statutes or federal la w;
3. With the specific consent of the aut horized possessor of the
device;
4. With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen;
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5. If the government entity, in good faith, believes that an
emergency involving danger of death or serious physic al injury to
any person requires access to th e electronic device information;
6. If the government entity, in good faith, believes the device
to be lost, stolen, or aband oned; provided, that the entity shall
only access electronic device information in or der to attempt to
identify, verify, or contact the owner or aut horized possessor of
the device; or
7. Except where prohibited by state or federal law, if the
device is seized from an inmate's possession or found in an area of
a correctional facility under the jurisdiction of the Department of
Corrections where inmates have access and the device is not in the
possession of an individual and the device is not known or believe d
to be the possession of an auth orized visitor. Nothing in this
paragraph shall be construed to supersede or override the Oklahoma
Statutes or rules promulgated by the Department of Corrections for
electronic devices.
D. Any warrant for electronic infor mation shall comply with the
following:
1. The warrant shall describe with particul arity the
information to be seized by specifying the time periods covered and,
as appropriate and reasonable, the target individuals or accounts,
the applications or servic es covered, and the types of information
sought;
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2. The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and not subject to further
review, use or disclosure without a court order. A court shall
issue such an order upon a finding th at there is probable cause to
believe that the information is relevant to an active investigation,
or review, use or disclosure is r equired by state or federal law;
and
3. The warrant shall comply with al l other provisions of state
and federal law includi ng any provisions prohibiting, limiting or
imposing additional requirements on the use of search warrants. If
directed to a service provider, the warrant shall be accompan ied by
an order requiring the ser vice provider to verify the authenticity
of electronic information that it produces by providing an affidavit
that complies with the requirements set forth in the Oklahoma
Evidence Code. Admission of that information into evidence shall be
subject to the Oklahoma Evidence Code.
E. When issuing any warran t or order for electronic
information, or upon the petition from the target or recipient of
the warrant or order, a court may, at its discretion, do any or all
of the following:
1. Appoint a special maste r charged with ensuring that only
information necessary to achieve the objective of the warrant or
order is produced or accessed; and
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2. Require that any information obtained through the execution
of the warrant or order t hat is unrelated to the objective of the
warrant be destroyed as soon as feasible af ter the termination of
the current investigation and any related investigations or
proceedings.
F. A service provider may voluntarily disclose electronic
communication information or subscriber informatio n when that
disclosure is not otherwise prohibited by state or federal law.
G. If a government entity receives electronic communication
information voluntarily prov ided pursuant to subsection F of this
section, it shall destroy that information within ninety (90) days
unless one or more of the following c ircumstances apply:
1. The entity has or obtains the specific consent of the sender
or recipient of the electronic communications about which
information was disclosed;
2. The entity obtains a court orde r authorizing the retention
of the information. A court shall issue a retention order upon a
finding that the conditions justifying the initial voluntary
disclosure persist, in which case the court shall authorize the
retention of the information only for so long as those conditions
persist, or there is p robable cause to believe that the information
constitutes evidence that a crime has been committed; or
3. The entity reasonably believes that the information relates
to child pornography and the informati on is retained as part of a
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multiagency database us ed in the investigation of child pornography
and related crimes.
H. If a government entity obtains electronic information
pursuant to an emergency involving danger of deat h or serious
physical injury to a person that requires access to the electronic
information without delay, the entity shall, within three (3) days
after obtaining the electronic information, file with the
appropriate court an application for a warrant or o rder authorizing
obtaining the electronic information or a motion seeking approval o f
the emergency disclosure that shall set forth the facts giving rise
to the emergency, and if applicable, a request supported by a sworn
affidavit for an order delaying notification under paragraph 1 of
subsection B of Section 4 of this act. The court shall promptly
rule on the application or motion . Upon a finding that the facts
did not give rise to an emergency or upon rejecting the warrant or
order application on any o ther ground, the court shall order the
immediate destruction of all information obta ined, and immediate
notification pursuant to sub section A of Section 4 of this act, i f
such notice has not already been given.
I. This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil
discovery subpoena to do any of the following:
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1. Require an originator, addressee, or intended recipient of
an electronic communication to disclose any electronic communication
information associated with that communication;
2. Require an entity that provides electronic communications
services to its officers, directors, employees or agents for the
purpose of carrying out their duties, to disclose electronic
communication information associated with an electro nic
communication to or from an officer, director, employee or agent of
the entity; or
3. Require a service provider to provide subscriber
information.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1265.3 of Title 22 , unless there
is created a duplication in numbering, reads as follows:
A. Except as otherwise provided in this section, any government
entity that executes a warrant, or obtains electronic in formation in
an emergency pursuan t to Section 3 of this act, shall serve upon, or
deliver to by registered or first -class mail, electronic mail or
other means reasonably calculated to be effective, the identified
targets of the warrant or emergency request , a notice that informs
the recipient that information about the recipient has been
compelled or requested, and states with reasonable specificity the
nature of the government investigation under which the information
is sought. The notice shall include a copy of the warrant or a
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written statement setting forth facts giving rise to the e mergency.
The notice shall be provided contemporaneously with the execution of
a warrant, or, in the case of an emergency, within three (3) days
after obtaining the electr onic information.
B. 1. When a warrant is sought or electronic information is
obtained in an emergency under Section 3 of this act, the government
entity may submit a request supported by a sworn affidavit for an
order delaying notification and prohibiti ng any party providing
information from notifying any other party that information h as been
sought. The court shall issue the order if the court determines
that there is reason to believe that notification may have an
adverse result, but only for the peri od of time that the court finds
there is reason to believe that the notification may have that
adverse result, and not to exceed ninety (90) days.
2. The court may grant extensions of the delay of up to ninety
(90) days each on the same grou nds as provided in paragraph 1 of
this subsection.
3. Upon expiration of the period of delay of t he notification,
the government entity shall serve upon, or deliver to by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effect ive as specified by the court iss uing the
order authorizing delayed notification, th e identified targets of
the warrant, a document that includes the information described in
subsection A of this section , a copy of all electronic information
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obtained or a summary of that information inclu ding, at a minimum,
the number and types of records disclosed, the date and time when
the earliest and latest records were created, and a statement of the
grounds for the court 's determination to grant a delay in notifying
the individual.
C. If there is no identified target of a warrant or emergency
request at the time of its issuance, the government entity shall
submit to the Department of Public Safety within three (3) days of
the execution of the warrant or issuance of t he request all of the
information required in subsection A of this section . If an order
delaying notice is obta ined pursuant to subsection B of this
section, the government entity shall submit to the Department upon
the expiration of the period of delay o f the notification all of the
information required in paragraph 3 of subsection B of this section.
The Department shall publish all those reports on its website within
ninety (90) days of receipt. The Department may redact names or
other personal identifying information from the reports .
D. Except as otherwise provided in this sectio n, nothing in
this act shall prohibit or limit a service provider or any other
party from disclosing information about any request or demand for
electronic information.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1265.4 of Title 22, unless there
is created a duplication in numbering, reads as follows:
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A. Any person in a trial, hearing or proceedi ng may move to
suppress any electronic info rmation obtained or retained in
violation of the Fourth Amendment to the United States Constitution
or of this act. The motion shall be made, determined, and be
subject to review in accordance with the procedures set forth in the
Oklahoma Statutes.
B. The Attorney General may commence a civil action to compel
any government entity to comply wit h the provisions of this act .
C. An individual whose information is targeted by a warrant,
order or other legal process that is inconsistent with this act or
the United States Constitution, or a service provider or any other
recipient of the warrant, order or other legal process may petition
the issuing court to void or modify the warrant, order or process,
or to order the destruction of any information obtained in violation
of this act or the United States Consti tution.
D. An Oklahoma or foreign corporation, and its officers,
employees and agents are not subject to any cause of action for
providing records, information, fa cilities or assistance in
accordance with the terms of a warrant, court order, statutory
authorization, emergency certification or wiretap order issued
pursuant to this act .
SECTION 6. This act shall become effective November 1, 20 21.
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