83R27654 GCB-F
By: Carona S.B. No. 1052
(Frullo, Thompson of Harris, Fletcher)
Substitute the following for S.B. No. 1052: No.
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, including 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 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, and
includes any[:
[(A) a temporary, intermediate storage of a wire
or electronic communication that is incidental to the electronic
transmission of the communication; or
[(B)] storage of a wire or electronic
communication by an electronic communications service or a remote
computing 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
electronic communications service or a provider of a remote
computing service to disclose electronic customer data not
otherwise described by [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 customer data [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) This section applies to a warrant
required under Section 4 to obtain electronic customer data,
including the contents of a wire communication or electronic
communication.
(b) 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,
including 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 provider of a remote computing service described by
Subsection (h), regardless of whether the customer data 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.
(c) A search warrant may not be issued under this section
unless the sworn affidavit required by Article 18.01(b) sets forth
sufficient and substantial facts to establish probable cause that:
(1) a specific offense has been committed; and
(2) the electronic customer data sought:
(A) constitutes evidence of that offense or
evidence that a particular person committed that offense; and
(B) is held in electronic storage by the service
provider on which the warrant is served under Subsection (i).
(d) Only the electronic customer data described in the sworn
affidavit required by Article 18.01(b) may be seized under the
warrant.
(e) A warrant issued under this section shall run in the
name of "The State of Texas."
(f) Article 18.011 applies to an affidavit presented under
Article 18.01(b) for the issuance of a warrant under this section,
and the affidavit may be sealed in the manner provided by that
article.
(g) The authorized 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 (i).
(h) 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
(j). 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.
(i) 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.
(j) The district judge shall indicate in the warrant that
the deadline for compliance by the provider of an electronic
communications service or the provider of a remote computing
service is 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
deadline for compliance is earlier than the 15th business day after
the date the warrant is served if the officer makes a showing and
the judge finds that failure to comply with the warrant by the
earlier deadline would cause serious jeopardy to an investigation,
cause undue delay of a trial, or create a material 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.
(k) If the authorized peace officer serving the warrant
under this section also delivers an affidavit form to the provider
of an electronic communications service or the provider of a remote
computing service responding to the warrant, and the peace officer
also notifies the provider in writing that an executed affidavit is
required, then the provider 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 the affidavit form that:
(1) is completed and sworn to by a person who is a
custodian of the information or a person otherwise qualified to
attest to its authenticity; and
(2) 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.
(l) 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.
(m) 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.
(n) A provider of an electronic communications service or a
provider of a remote computing service responding to a warrant
issued under this section may request an extension of the period for
compliance with the warrant if extenuating circumstances exist to
justify the extension. The district judge shall grant a request for
an extension based on those circumstances if:
(1) the authorized peace officer who applied for the
warrant or another appropriate authorized peace officer agrees to
the extension; or
(2) the district judge finds that the need for the
extension outweighs the likelihood that the extension will cause an
adverse circumstance described by Subsection (j).
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(b), if the warrant is
served on the entity in a manner equivalent to the service of
process requirements provided in Section 5A(h).
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.