2013 -- H 5681

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LC01685

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE -- CELL PHONE TRACKING

     Introduced By: Representatives Ajello, Tanzi, Handy, Cimini, and Walsh

     Date Introduced: February 27, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

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hereby amended by adding thereto the following chapter:

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     CHAPTER 32

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CELL PHONE TRACKING

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     12-32-1. Definitions. -- As used in this chapter:

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     (1) "Location information" means any information concerning the location of an

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electronic device that, in whole or in part, is generated by or derived from the operation of that

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device.

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     (2) "Electronic device" means any device that enables access to, or use of, an electronic

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communication service (as defined in 18 USC 2510(15)), remote computing service (as defined in

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18 USC 2711(2)), or location information service.

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     (3) "Location information service" means a global positioning service or other mapping,

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locational, or directional information service.

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     (4) "Adverse result" means:

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     (i) Endangering the life or physical safety of an individual;

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     (ii) Flight from prosecution;

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     (iii) Destruction of or tampering with evidence;

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     (iv) Intimidation of potential witnesses; or

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     (v) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

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     (5) Service provider means the provider of an electronic communications service, remote

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computing service, or location information service.

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     12-32-2. Requirement for warrant. -- No agent of the state or any political subdivisions

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thereof shall obtain location information without a warrant.

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     12-32-3. Notice. -- (a) Unless delayed notice is ordered under subsection (b), not later

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than three (3) days after an agent of the state or any political subdivisions thereof receives

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location information under this chapter, the agent of the state or any political subdivisions thereof

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shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means

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reasonably calculated to be effective as specified by the court issuing the warrant to the

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customer(s) or subscriber(s):

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     (1) A copy of the warrant; and

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     (2) Notice that informs such customer(s) or subscriber(s):

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     (i) Of the nature of the law enforcement inquiry with reasonable specificity;

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     (ii) That location information maintained for such customer(s) or subscriber(s) was

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supplied to or requested by that agent of the state or any political subdivisions thereof and the

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date on which the supplying or request took place;

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     (iii) If such location information was obtained from a service provider or other third

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party, the identity of the third party from which the information was obtained;

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     (iv) Whether notification of such customer(s) or subscriber(s) was delayed pursuant to

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subsection 12-32-3(b);

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     (v) What court made the certification or determination pursuant to which that delay was

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made, if applicable; and

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     (vi) If applicable, which provision of this chapter allowed such delay.

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     (b) Delay of notification. - An agent of the state or any political subdivisions thereof

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acting under this chapter may include in the application a request for an order delaying the

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notification required pursuant to this subsection for a period not to exceed ninety (90) days, and

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the court shall issue the order if the court determines that there is reason to believe that

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notification of the existence of the warrant may have an adverse result.

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     (c) Upon expiration of the period of delay granted under this section, the agent of the

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state or any political subdivisions thereof shall provide the customer(s) or subscriber(s) a copy of

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warrant together with any notice required.

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     (d) Preclusion of notice to subject of governmental access. - An agent of the state or any

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political subdivisions thereof acting under this chapter may include in the application a request

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for an order directing a service provider to which a warrant is directed not to notify any other

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person of the existence of the warrant for a period of not more than ninety (90) days, and the

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court shall issue the order if the court determines that there is reason to believe that notification of

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the existence of the warrant may have an adverse result.

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     (e) The court may, upon application, grant one or more extensions of orders granted

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under this chapter for an additional ninety (90) days.

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     12-32-4. Emergency situation exceptions. -- Notwithstanding any other provision of

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this chapter, an agent of the state or any political subdivision may obtain location information:

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     (1) In order to respond to the user’s call for emergency services;

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     (2) With the express consent of the owner or user of the electronic communications

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device concerned; or

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     (3) If an agent of the state or any political subdivisions thereof believes that an

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emergency involving immediate danger of death or serious physical injury to any person requires

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obtaining without delay of information relating to the emergency and the request is narrowly

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tailored to address the emergency, subject to the following limitations:

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     (i) The request shall document the factual basis for believing that an emergency involving

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immediate danger of death or serious physical injury to a person requires obtaining without delay

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of the information relating to the emergency; and

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     (ii) Not later than forty-eight (48) hours after the date on which an agent of the state or

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any political subdivisions thereof obtains access to records under subsection 12-32-4(c), a

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governmental entity shall file with the appropriate court a signed, sworn statement of a

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supervisory official of a rank designated by the head of the governmental entity setting forth the

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grounds for the emergency access.

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     12-32-5. Exigent circumstances exceptions. -- (a) An investigative or law enforcement

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officer specially designated by the attorney general may acquire location information before

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obtaining a warrant authorizing the installation or use if:

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     (1) The officer cannot, with due diligence, obtain a warrant to address an emergency

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situation that involves immediate danger of death or serious bodily injury; and

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     (2) When the officer acquires location information, there are grounds upon which a

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warrant could be entered under this chapter to authorize the acquisition.

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     (b) An officer who acquires location information before obtaining an order authorizing

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the acquisition must, within forty-eight (48) hours after the acquisition occurs or begins to occur,

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obtain a warrant approving the installation or use in accordance with this chapter.

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     (c) In the absence of a warrant, such acquisition shall immediately terminate when the

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location information sought is obtained or when the application for a warrant is denied,

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whichever is earlier.

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     (d) In the event such application for a warrant is denied, or in any other case where the

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interception is terminated without a warrant having been issued, the location information acquired

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shall be treated as having been obtained in violation of this chapter, and notice shall be served to

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all owners or users of electronic devices about which location information was acquired in

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violation of this chapter.

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     12-32-6. Reporting requirements. -- (a) By January 31 of each calendar year, the

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attorney general shall issue a report identifying the number of warrants approved and denied in

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the previous year, including:

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     (1) The identity of the agency making the application;

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     (2) The offense specified in the warrant or application therefor;

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     (3) The nature of the facilities from which, the place where, or the technique by which

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location information was to be obtained;

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     (4) The expected number of devices about which location information was to be

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obtained;

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     (5) The fact that the warrant was granted as applied for, was modified, or was denied; and

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     (6) The period of disclosures authorized by the warrant, and the number and duration of

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any extensions of the warrant.

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     12-32-7. Suppression. -- (a) Except as proof of a violation of this section, no evidence

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obtained in violation of this section shall be admissible in any criminal, civil, administrative, or

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other proceeding.

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     (b) Any location information obtained pursuant to this chapter or evidence derived

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therefrom shall not be received in evidence or otherwise disclosed in any. trial, hearing, or other

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proceeding in a federal or state court unless each party, not less than ten (10) days before the trial,

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hearing, or proceeding, has been furnished with a copy of the warrant, and accompanying

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application, under which the information was obtained. This ten (10) day period may be waived

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by the judge if he or she finds that it was not possible to furnish the party with the above

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information ten (10) days before the trial, hearing, or proceeding and that the party will not be

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prejudiced by the delay in receiving such information.

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     SECTION 2. This act shall take effect upon passage.

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LC01685

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE -- CELL PHONE TRACKING

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     This act would prohibit the collection of information relating to the location of certain

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electronic devices.

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     This act would take effect upon passage.

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LC01685

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