2021 -- H 5091

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LC000606

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING COURTS AND CIVIL PROCEDURE - PROCEDURE GENERALLY -

WITNESSES

     Introduced By: Representative Jason Knight

     Date Introduced: January 22, 2021

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 9-17 of the General Laws entitled "Witnesses" is hereby amended

by adding thereto the following section:

     9-17-5.2. Subpoena for production of documentary evidence from social media and

Internet sites.

     (a) Definitions. As used in this section the following terms shall have the following

meanings:

     (1) "Internet" means, collectively, the myriad of computer and telecommunications

facilities, including equipment and operating software, that comprise the interconnected worldwide

network of networks that employ the transmission control protocol or Internet protocol, or any

predecessor or successor protocols to such protocol, to communicate information of all kinds by

wire or radio.

     (2) "Social media" means any cell phone- or internet-based tools and applications that are

used to share and distribute information.

      (b) Upon a motion by defense counsel in a criminal case, the court, upon finding of good

cause, shall order the department of attorney general and/or the investigating police department, or

the lead law enforcement agency involved in any investigation if more than one, to issue a subpoena

or subpoenas to any social media site or Internet-based company, for all records, posts,

submissions, statements, photographs of any person who is a witness or a potential witness in any

criminal proceeding. Said subpoena shall be returnable to the issuing court and all documents,

books, papers or any other tangible or thing contained in the response shall be reviewed in camera

by the court. If the court finds that the returned records are relevant to the matter before the court,

it shall provide defendant’s counsel the records in furtherance of its investigation.

     (c) When any subpoena under this section for the production of books, papers, documents,

or tangible things is served on any social media or Internet site, it shall be deemed a sufficient

response to the subpoena if the employee of the entity charged with the responsibility of being

custodian of the original records promptly provides the attorney for the party causing service of the

subpoena copies of all documents requested by the subpoena. All responses to the subpoena shall

contain a certificate which shall be signed before a notary public by the employee of the entity

charged with the responsibility of being custodian of the records and shall include a legend

substantially to the following effect: "The copies of records for which this certification is made are

true and complete reproductions of the original or microfilmed records which are in the possession

of (name of entity). This certification is given pursuant to Rhode Island general laws § 9-17-5.2 by

the custodian of the records in lieu of his or her personal appearance."

     (d) Documents or records of any social media or Internet site that are susceptible to

photostatic reproduction may be proved as to foundation, identity, and authenticity without any

preliminary testimony, by use of legible and durable copies, certified in the manner provided in

subsection (c) of this section by the employee of the entity charged with the responsibility of being

custodian of the originals thereof. The copies may be used in any trial, hearing, deposition, or any

other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original

documents or records which, however, the entity shall hold available for inspection and comparison

by the court, tribunal, or hearing officer and by the parties and their attorneys of record.

     (e) In the event any of the entities are unable to provide the documents requested in the

subpoena due to the timeliness of the service of the subpoena or for other legal reasons, then the

employee charged with the responsibility of being custodian of the records for the entity shall set

forth in the certificate required hereunder the specific reasons for the noncompliance, the time of

service of the subpoena, and if appropriate the time anticipated in complying with the subpoena.

     SECTION 2. Chapter 12-5 of the General Laws entitled "Search Warrants" is hereby

amended by adding thereto the following section:

     12-5-11. Search warrant for production of documentary evidence from social media

and Internet sites.

     (a) Definitions. As used in this section the following terms shall have the following

meanings:

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     (1) "Internet" means, collectively, the myriad of computer and telecommunications

facilities, including equipment and operating software, that comprise the interconnected worldwide

network of networks that employ the transmission control protocol or Internet protocol, or any

predecessor or successor protocols to such protocol, to communicate information of all kinds by

wire or radio.

     (2) "Social media" means any cell phone- or internet-based tools and applications that are

used to share and distribute information.

      (b) Upon a motion by defense counsel in a criminal case, the court, upon finding of good

cause, shall order the department of attorney general and/or the investigating police department, or

the lead law enforcement agency involved in any investigation if more than one, to apply for a

search warrant commanding any social media site or Internet-based company, to produce all

records, posts, submissions, statements, photographs of any person who is witness or a potential

witness in any criminal proceeding. Said search warrant shall be returnable to the issuing court and

all documents, books, papers or any other tangible or thing contained in the response shall be

reviewed in camera by the court. If the court finds that the returned records are relevant to the

matter before the court, it shall provide defendant’s counsel the records in furtherance of its

investigation.

     (c) When any search warrant under this section for the production of books, papers,

documents, or tangible things is served on any social media or Internet site, it shall be deemed a

sufficient response to the search warrant if the employee of the entity charged with the

responsibility of being custodian of the original records promptly provides the attorney for the party

causing service of the search warrant copies of all documents requested by the warrant. All

responses to the warrant shall contain a certificate which shall be signed before a notary public by

the employee of the entity charged with the responsibility of being custodian of the records and

shall include a legend substantially to the following effect: "The copies of records for which this

certification is made are true and complete reproductions of the original or microfilmed records

which are in the possession of (name of entity). This certification is given pursuant to Rhode Island

general laws § 12-5-11 by the custodian of the records in lieu of his or her personal appearance."

     (d) Documents or records of any social media or internet site that are susceptible to

photostatic reproduction may be proved as to foundation, identity, and authenticity without any

preliminary testimony, by use of legible and durable copies, certified in the manner provided in

subsection (c) of this section by the employee of the entity charged with the responsibility of being

custodian of the originals thereof. The copies may be used in any trial, hearing, deposition, or any

other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original

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documents or records which, however, the entity shall hold available for inspection and comparison

by the court, tribunal, or hearing officer and by the parties and their attorneys of record.

     (e) In the event any of the entities are unable to provide the documents requested in the

warrant due to the timeliness of the service of the warrant or for other legal reasons, then the

employee charged with the responsibility of being custodian of the records for the entity shall set

forth in the certificate required hereunder the specific reasons for the noncompliance, the time of

service of the warrant, and if appropriate the time anticipated in complying with the warrant.

     SECTION 3. This act shall take effect upon passage.

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LC000606

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING COURTS AND CIVIL PROCEDURE - PROCEDURE GENERALLY -

WITNESSES

***

     This act would require, upon motion by defense counsel in a criminal proceeding, the

attorney general and/or the lead investigating law enforcement agency to issue a subpoena or search

warrant to social media and internet sites for production of all material posted or submitted by any

witness or potential witness.

     This act would take effect upon passage.

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LC000606

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