By: Carona S.B. No. 1052
(In the Senate - Filed March 4, 2013; March 12, 2013, read
first time and referred to Committee on Criminal Justice;
April 11, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; April 11, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1052 By: Huffman
A BILL TO BE ENTITLED
AN ACT
relating to search warrants issued in this state and other states
for certain customer data, communications, and other information
held in electronic storage in this state and other states by
providers of electronic communications services and remote
computing services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 18.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant
may be issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons; [or]
(12) contraband subject to forfeiture under Chapter 59
of this code; or
(13) electronic customer data held in electronic
storage or the contents of and records and other information
related to a wire communication or electronic communication held in
electronic storage.
(b) For purposes of Subsection (a)(13), "electronic
communication," "electronic storage," and "wire communication"
have the meanings assigned by Article 18.20, and "electronic
customer data" has the meaning assigned by Article 18.21.
SECTION 2. Subsection (a), Article 18.06, Code of Criminal
Procedure, is amended to read as follows:
(a) A peace officer to whom a search warrant is delivered
shall execute the warrant [it] without delay and forthwith return
the warrant [it] to the proper magistrate. A search warrant issued
under Section 5A, Article 18.21, must be executed in the manner
provided by that section not later than the 11th day after the date
of issuance. In all other cases, a search warrant [It] must be
executed within three days from the time of its issuance. A warrant
issued under this chapter[, and] shall be executed within a shorter
period if so directed in the warrant by the magistrate.
SECTION 3. Subsection (a), Article 18.07, Code of Criminal
Procedure, is amended to read as follows:
(a) The period [time] allowed for the execution of a search
warrant, exclusive of the day of its issuance and of the day of its
execution, is:
(1) 15 whole days if the warrant is issued solely to
search for and seize specimens from a specific person for DNA
analysis and comparison, including blood and saliva samples;
(2) 10 whole days if the warrant is issued under
Section 5A, Article 18.21; or
(3) [(2)] three whole days if the warrant is issued
for a purpose other than that described by Subdivision (1) or (2).
SECTION 4. Subdivision (20), Section 1, Article 18.20, Code
of Criminal Procedure, is amended to read as follows:
(20) "Electronic storage" means:
(A) any storage of electronic customer data in a
computer, computer network, or computer system, regardless of
whether the data is subject to recall, further manipulation,
deletion, or transmission [a temporary, intermediate storage of a
wire or electronic communication that is incidental to the
electronic transmission of the communication]; or
(B) any storage of a wire or electronic
communication by an electronic communications service [for
purposes of backup protection of the communication].
SECTION 5. Section 1, Article 18.21, Code of Criminal
Procedure, is amended by adding Subdivisions (3-b) and (3-c) to
read as follows:
(3-b) "Domestic entity" has the meaning assigned by
Section 1.002, Business Organizations Code.
(3-c) "Electronic customer data" means data or records
that:
(A) are acquired by or stored with the provider
of an electronic communications service or a remote computing
service; and
(B) contain:
(i) information revealing the identity of
customers of the applicable service;
(ii) information about a customer's use of
the applicable service;
(iii) information that identifies the
recipient or destination of a wire communication or electronic
communication sent to or by the customer;
(iv) the content of a wire communication or
electronic communication sent to or by the customer; and
(v) any data stored by or on behalf of the
customer with the applicable service provider.
SECTION 6. Subsections (a), (b), (c), and (d), Section 4,
Article 18.21, Code of Criminal Procedure, are amended to read as
follows:
(a) An authorized peace officer may require a provider of
electronic communications service to disclose the contents of a
wire communication or an electronic communication that has been in
electronic storage for not longer than 180 days by obtaining a
warrant under Section 5A.
(b) An authorized peace officer may require a provider of
electronic communications service to disclose the contents of a
wire communication or an electronic communication that has been in
electronic storage for longer than 180 days:
(1) if notice is not being given to the subscriber or
customer, by obtaining a warrant under Section 5A;
(2) if notice is being given to the subscriber or
customer, by obtaining:
(A) an administrative subpoena authorized by
statute;
(B) a grand jury subpoena; or
(C) a court order issued under Section 5 of this
article; or
(3) as otherwise permitted by applicable federal law.
(c)(1) An authorized peace officer may require a provider of
a remote computing service to disclose the contents of a wire
communication or an electronic communication as described in
Subdivision (2) of this subsection:
(A) if notice is not being given to the
subscriber or customer, by obtaining a warrant [issued] under
Section 5A [this code];
(B) if notice is being given to the subscriber or
customer, by:
(i) an administrative subpoena authorized
by statute;
(ii) a grand jury subpoena; or
(iii) a court order issued under Section 5
of this article; or
(C) as otherwise permitted by applicable federal
law.
(2) Subdivision (1) of this subsection applies only to
a wire communication or an electronic communication that is in
electronic storage:
(A) on behalf of a subscriber or customer of the
service and is received by means of electronic transmission from or
created by means of computer processing of communications received
by means of electronic transmission from the subscriber or
customer; and
(B) solely for the purpose of providing storage
or computer processing services to the subscriber or customer if
the provider of the service is not authorized to obtain access to
the contents of those communications for purposes of providing any
service other than storage or computer processing.
(d) An authorized peace officer may require a provider of
remote computing service to disclose records or other information
pertaining to a subscriber or customer of the service, other than
communications described in Subsection (c) of this section, without
giving the subscriber or customer notice:
(1) by obtaining an administrative subpoena
authorized by statute;
(2) by obtaining a grand jury subpoena;
(3) by obtaining a warrant under Section 5A;
(4) by obtaining the consent of the subscriber or
customer to the disclosure of the records or information;
(5) by obtaining a court order under Section 5 of this
article; or
(6) as otherwise permitted by applicable federal law.
SECTION 7. Article 18.21, Code of Criminal Procedure, is
amended by adding Sections 5A and 5B to read as follows:
Sec. 5A. WARRANT ISSUED IN THIS STATE FOR STORED CUSTOMER
DATA OR COMMUNICATIONS. (a) On the filing of an application by an
authorized peace officer, a district judge may issue a search
warrant under this section for electronic customer data held in
electronic storage or the contents of and records and other
information related to a wire communication or electronic
communication held in electronic storage by a provider of an
electronic communications service or a provider of a remote
computing service described by Subsection (c), regardless of
whether the customer data, contents of communications, or other
information is held at a location in this state or at a location in
another state. An application made under this subsection must
demonstrate probable cause for the issuance of the warrant and must
be supported by the oath or affirmation of the authorized peace
officer.
(b) The peace officer shall execute the warrant not later
than the 11th day after the date of issuance, except that the
officer shall execute the warrant within a shorter period if so
directed in the warrant by the district judge. For purposes of this
subsection, a warrant is executed when the warrant is served in the
manner described by Subsection (d).
(c) A warrant under this section may be served only on a
service provider that is a domestic entity or a company or entity
otherwise doing business in this state under a contract or a terms
of service agreement with a resident of this state, if any part of
that contract or agreement is to be performed in this state. The
service provider shall produce all electronic customer data,
contents of communications, and other information sought,
regardless of where the information is held and within the period
allowed for compliance with the warrant, as provided by Subsection
(e). A court may find any officer, director, or owner of a company
or entity in contempt of court if the person by act or omission is
responsible for the failure of the company or entity to comply with
the warrant within the period allowed for compliance. The failure
of a company or entity to timely deliver the information sought in
the warrant does not affect the admissibility of that evidence in a
criminal proceeding.
(d) A search warrant issued under this section is served
when the authorized peace officer delivers the warrant by hand, by
facsimile transmission, or, in a manner allowing proof of delivery,
by means of the United States mail or a private delivery service to:
(1) a person specified by Section 5.255, Business
Organizations Code;
(2) the secretary of state in the case of a company or
entity to which Section 5.251, Business Organizations Code,
applies; or
(3) any other person or entity designated to receive
the service of process.
(e) The district judge shall indicate in the warrant the
deadline for compliance by the provider of an electronic
communications service or the provider of a remote computing
service, which may not be later than the 15th business day after the
date the warrant is served if the warrant is to be served on a
domestic entity or a company or entity otherwise doing business in
this state, except that the deadline for compliance with a warrant
served in accordance with Section 5.251, Business Organizations
Code, may be extended to a date that is not later than the 30th day
after the date the warrant is served. The judge may indicate in a
warrant that the period allowed for compliance is four business
days or less after the date the warrant is served if the officer
makes a showing and the judge finds that failure to comply with the
warrant in four business days or less would cause serious jeopardy
to an investigation, cause undue delay of a trial, or create a risk
of:
(1) danger to the life or physical safety of any
person;
(2) flight from prosecution;
(3) the tampering with or destruction of evidence; or
(4) intimidation of potential witnesses.
(f) The provider of an electronic communications service or
a provider of a remote computing service responding to a warrant
issued under this section shall verify the authenticity of the
customer data, contents of communications, and other information
produced in compliance with the warrant by including with the
information an affidavit that is given by a person who is a
custodian of the information or a person otherwise qualified to
attest to its authenticity and that states that the information was
stored in the course of regularly conducted business of the
provider and specifies whether it is the regular practice of the
provider to store that information.
(g) On a service provider's compliance with a warrant under
this section, an authorized peace officer shall file a return of the
warrant and a copy of the inventory of the seized property as
required under Article 18.10.
(h) The district judge shall hear and decide any motion to
quash the warrant not later than the fifth business day after the
date the service provider files the motion. The judge may allow the
service provider to appear at the hearing by teleconference.
Sec. 5B. WARRANT ISSUED IN ANOTHER STATE FOR STORED
CUSTOMER DATA OR COMMUNICATIONS. Any domestic entity that provides
electronic communications services or remote computing services to
the public shall comply with a warrant issued in another state and
seeking information described by Section 5A(a), if the warrant is
served on the entity in a manner equivalent to the service of
process requirements provided in Section 5A(c).
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.
* * * * *