2024 -- H 7453

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LC004095

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- ELECTRONIC INFORMATION AND DATA

PRIVACY ACT

     Introduced By: Representatives Place, and J. Brien

     Date Introduced: February 02, 2024

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

amended by adding thereto the following chapter:

CHAPTER 34

ELECTRONIC INFORMATION AND DATA PRIVACY ACT

     12-34-1. Short title.

     This chapter shall be known and may be cited as the "Electronic Information and Data

Privacy Act".

     12-34-2. Definitions.

     As used in this chapter:

     (1) "Electronic communication service" means a service that provides to users of the

service the ability to send or receive wire or electronic communications.

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

communication service, remote computing service, or location information service.

     (3) "Electronic information or data" means information or data including a sign, signal,

writing, image, sound or intelligence of any nature transmitted or stored, in whole or in part, by a

wire, radio, electromagnetic, photo-electronic, or photo-optical system:

     (i) "Electronic information or data" includes the location information, stored data, or

transmitted data of an electronic device;

     (ii) "Electronic information or data" does not include:

     (A) A wire or oral communication;

     (B) A communication made through a tone-only paging device; or

     (C) Electronic funds transfer information stored by a financial institution in a

communications system used for the electronic storage and transfer of money.

     (4) "Law enforcement agency" means an entity of the state or a political subdivision of the

state including any municipality within the state, or any agency acting on their behalf, that exists

primarily to prevent, detect, or prosecute crime and enforce criminal statutes or ordinances.

     (5) "Location information" means information obtained by means of a tracking device,

concerning the location of an electronic device that, in whole or in part, is generated or derived

from or obtained from the operation of an electronic device.

     (6) "Location information service" means the provision of a global positioning service or

other mapping, location, or directional information service.

     (7) "Oral communication" means any oral communication uttered by a person exhibiting

an expectation that the communication is not subject to interception under circumstances justifying

that expectation.

     (8) "Remote computing service" means the provision to the public of computer storage or

processing services by means of an electronic communication system.

     (9) "Transmitted data" means electronic information or data that is transmitted wirelessly

from:

     (i) An electronic device to another electronic device without the use of an intermediate

connection or relay; or

     (ii) An electronic device to a nearby antenna.

     (10) "Wire communications" means any aural transfer made, in whole or in part, through

the use of facilities for the transmission of communications by the aid of wire, cable, or other like

connection between the point of origin and the point of reception, (including the use of the

connection in a switching station) furnished or operated by any person engaged in providing or

operating the facilities for the transmission of communications. The term includes any electronic

storage of the communication.

     12-34-3. Electronic information or data privacy-Warrant required for disclosure.

     (a) Except as provided in subsection (e) of this section, for a criminal investigation or

prosecution, a law enforcement agency shall not obtain the following electronic information or

data, without a search warrant issued by a court upon a finding of probable cause:

     (1) The location information, stored data, or transmitted data of an electronic device; or

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     (2) Electronic information or data transmitted by the owner of the electronic information

or data to a remote computing service provider.

     (b) Except as provided in subsection (d) of this section, a law enforcement agency shall not

use, copy, or disclose, for any purpose, the location information, stored data, transmitted data of an

electronic device, or electronic information or data provided by a remote computing service

provider, that:

     (1) Is not the subject of the warrant; and

     (2) Is collected as part of an effort to obtain the location information, stored data,

transmitted data of an electronic device, or electronic information or data provided by a remote

computing service provider that is the subject of the warrant described in subsection (a) of this

section.

     (c) A law enforcement agency may use, copy, or disclose the transmitted data of an

electronic device used to communicate with the electronic device that is the subject of the warrant,

if the law enforcement agency reasonably believes that the transmitted data is necessary to achieve

the objective of the warrant.

     (d) The electronic information or data described in subsection (b) of this section shall be

destroyed in an unrecoverable manner by the law enforcement agency as soon as reasonably

possible after the electronic information is collected.

     (e) A law enforcement agency may obtain location information without a warrant for an

electronic device:

     (1) If the device is reported stolen by the owner;

     (2) With the informed, affirmative consent of the owner or user of the electronic device;

     (3) In accordance with a judicially recognized exception to the warrant requirement;

     (4) If the owner has voluntarily and publicly disclosed the location information; or

     (5) From the remote computing service provider, if the remote computing service provider

voluntarily discloses the location information:

     (i) Under a belief that an emergency exists involving an imminent risk to an individual of

death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping, or

human trafficking; or

     (ii) That is inadvertently discovered by the remote computing service provider and appears

to pertain to the commission of a felony, or of a misdemeanor involving physical violence, sexual

abuse, or dishonesty.

     (f) A law enforcement agency may obtain stored or transmitted data from an electronic

device, or electronic information or data transmitted by the owner of the electronic information or

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data to a remote computing service provider, without a warrant:

     (1) With the informed consent of the owner of the electronic device or electronic

information or data;

     (2) In accordance with a judicially recognized exception to the warrant requirement;

     (3) In connection with a report forwarded by the National Center for Missing and Exploited

Children under 18 U.S.C. § 2258A; or

     (4) From the remote computing service provider, if the remote computing service provider

voluntarily discloses the location information:

     (i) Under a belief that an emergency exists involving an imminent risk to an individual of

death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping, or

human trafficking; or

     (ii) That is inadvertently discovered by the remote computing service provider and appears

to pertain to the commission of a felony, or of a misdemeanor involving physical violence, sexual

abuse, or dishonesty.

     (g) A prosecutor may obtain a judicial order based on a finding of probable cause,

consistent with 18 U.S.C. §§ 2703 and 2702(b) and (c), to the electronic communications system

or service or remote computing service provider that owns or controls the Internet protocol address,

websites, email address, or service to a specific telephone number, requiring the production of the

following information, if available, upon providing in the court order the Internet protocol address,

email address, telephone number, or other identifier, and the dates and times the address, telephone

number, or other identifier suspected of being used in the commission of the offense;

     (1) Names of subscribers, service customers, and users;

     (2) Addresses of subscribers, service customers, and users;

     (3) Records of session times and durations;

     (4) Length of service, including the start date and types of service utilized; and

     (5) Telephone or other instrument subscriber numbers or other subscriber identifiers,

including any temporarily assigned network address.

     (h) An electronic communication service provider or remote computing service provider,

their officers, agents, employees or other specified individuals acting pursuant to and in accordance

with the provisions of this chapter, may not be held liable for providing information, facilities, or

assistance in good faith reliance on the terms of the warrant or without a warrant in accordance

with subsections (e) and (f) of this section.

     (i) Nothing in this chapter affects the provisions of chapter 2 of title 38, (access to public

records act,) or limits or affects the rights of an employer to voluntarily provide location

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information, stored or transmitted data from an electronic device, or electronic information or data

transmitted by an employee utilizing an electronic device owned by the employer.

     12-34-4. Notification required - Delayed notification.

     (a) Except as provided in subsection (b) of this section, a law enforcement agency that

executes a warrant pursuant to this chapter shall, within fourteen (14) days after the day on which

the electronic information or data that is the subject of the warrant is obtained by the law

enforcement agency, issue a notification to the owner of the electronic device or electronic

information or data specified in the warrant that includes the following information:

     (1) That a warrant was applied for and granted;

     (2) The kind of warrant issued;

     (3) The period of time during which the collection of the electronic information or data was

authorized;

     (4) The offense specified in the application for the warrant;

     (5) The identity of the law enforcement agency that filed the application; and

     (6) The identity of the judge or magistrate who issued the warrant.

     (b) The notification requirement of subsection (a) of this section, shall not be triggered

until the owner of the electronic device or electronic information or data specified in the warrant is

known, or could reasonably be identified, by the law enforcement agency.

     (c) A law enforcement agency seeking a warrant pursuant to this chapter may submit a

request, and the court may grant permission, to delay notification required by subsection (a) of this

section for a period not to exceed thirty (30) days, if the court determines that there is reasonable

cause to believe that the notification may:

     (1) Endanger the life or physical safety of an individual;

     (2) Cause a person to flee from prosecution;

     (3) Lead to the destruction of evidence;

     (4) Intimidate a potential witness; or

     (5) Otherwise seriously jeopardize an investigation or unduly delay a trial.

     (d) When a delay of notification is granted under subsection (c) of this section and upon

application by the law enforcement agency, the court may grant additional extensions of up to thirty

(30) days each.

     (e) Notwithstanding subsection (d) of this section, when a delay of notification is granted

under subsection (c) of this section, and upon application by a law enforcement agency, the court

may grant an additional extension of up to sixty (60) days if the court determines that a delayed

notification is justified because the investigation involving the warrant:

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     (1) Is interstate in nature and sufficiently complex; or

     (2) Is likely to extend up to or beyond an additional sixty (60) days.

     (f) Upon expiration of the period of delayed notification granted under subsections (c) or

(d) of this section, the law enforcement agency shall serve upon or deliver by first-class mail, or by

other means if delivery is impracticable, to the owner of the electronic device or electronic

information or data a copy of the warrant together with notice that:

     (1) States with reasonable specificity the nature of the law enforcement inquiry including:

     (i) The information described in subsection (a) of this section;

     (ii) A statement that notification of the search was delayed;

     (iii) The name of the court that authorized the delay of notification; and

     (iv) A reference to the provision of this chapter that allowed the delay of notification.

     (g) A law enforcement agency is not required to notify the owner of the electronic device

or electronic information or data if the owner is located outside of the United States.

     12-34-5. Third-party electronic information or data.

     (a) As used in this section, "subscriber record" means a record or information of a provider

of an electronic communication service or remote computing service that reveals the subscriber's

or customer's:

     (1) Name;

     (2) Address;

     (3) Local and long distance telephone connection record, or record of session time and

duration;

     (4) Length of service, including the start date;

     (5) Type of service used;

     (6) Telephone number, instrument number, or other subscriber or customer number or

identification, including a temporarily assigned network address; and

     (7) Means and source of payment for the service, including credit card or bank account

numbers.

     (b) Except for purposes of grand jury testimony or use at trial after indictment, a law

enforcement agency shall not obtain, use, copy or disclose a subscriber record.

     (c) A law enforcement agency shall not obtain, use, copy or disclose, for a criminal

investigation or prosecution, any record or information, other than a subscriber record, of a provider

of an electronic communication service or remote computing service related to a subscriber or

customer without a warrant.

     (d) Notwithstanding subsections (b) and (c) of this section, a law enforcement agency may

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obtain, use, copy or disclose a subscriber record, or other record or information related to a

subscriber or customer, without a warrant:

     (1) With the informed, affirmed consent of the subscriber or customer;

     (2) In accordance with a judicially recognized exception to warrant requirements;

     (3) If the subscriber or customer voluntarily discloses the record in a manner that is publicly

accessible; or

     (4) If the provider of an electronic communication service or remote computing service

voluntarily discloses the record:

     (i) Under a belief that an emergency exists involving the imminent risk to an individual of:

     (A) Death;

     (B) Serious physical injury;

     (C) Sexual abuse;

     (D) Live-streamed sexual exploitation;

     (E) Kidnapping; or

     (F) Human trafficking;

     (ii) That is inadvertently discovered by the provider, if the record appears to pertain to the

commission of:

     (A) A felony; or

     (B) A misdemeanor involving physical violence, sexual abuse or dishonesty; or

     (iii) Subject to subsection (d) of this section, as otherwise permitted under 18 U.S.C. §

2702.

     (e) A provider of an electronic communication service or remote computing service, or the

provider's officers, agents, or other specified persons shall not be held liable for providing

information facilities, or assistance in good faith reliance on the terms of a warrant issued under

this section, or without a warrant in accordance with subsection (d) of this section.

     12-34-6. Exclusion of records.

     All electronic information or data and records of a provider of an electronic communication

service or remote computing service pertaining to a subscriber or customer that are obtained in

violation of the provisions of this chapter shall be subject to the rules governing exclusion as if the

records were obtained in violation of the Fourth Amendment to the United States Constitution and

Article 1, Section 6 of the Rhode Island Constitution.

     SECTION 2. Sections 12-5.2-1, 12-5.2-2, 12-5.2-3 and 12-5.2-4 of the General Laws in

Chapter 12-5.2 entitled "Pen Registers and Trap and Trace Devices" are hereby amended to read

as follows:

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     12-5.2-1. Definitions.

     As used in this chapter:

     (1) “Designated offense” means the offenses of:

     (i) Murder, robbery, kidnapping, extortion, assault with a dangerous weapon, and assault

with intent to rob or murder;

     (ii) Arson in the first degree, arson in the second degree, or arson in the third degree;

     (iii) Bribery; larceny involving the receipt of stolen property of a value of more than five

hundred dollars ($500);

     (iv) Any violation of chapter 28 of title 21 where the offense is punishable by imprisonment

for more than one year;

     (v) Any violation of chapters 19, 47, or 51 of title 11, where the offense is punishable by

imprisonment for more than one year;

     (vi) The lending of money at a rate of interest in violation of law; and

     (vii) Conspiracy to commit any of the offenses provided in this subdivision;

     (2) “Pen register” means a device which records or decodes electronic or other impulses

which identify the numbers dialed or otherwise transmitted on the telephone line to which the

device is attached, but does not include any device used by a provider or customer of a wire or

electronic communication service for billing, or recording as an incident to billing, for

communications services provided by the provider or any device used by a provider or customer of

a wire communication service for cost accounting or other like purposes in the ordinary course of

its business;

     (3) "Stingray" means any cell-site simulator device which forces nearby mobile phones and

other cellular data devices to connect to it, or forces a temporary connection with cellular devices

for the purpose of downloading the IMSI, ESN, or other identifying data from each of the cellular

phones or cellular data devices which are forced to connect to the device;

     (3)(4) “Trap and trace device” means a device which captures the incoming electronic or

other impulses which identify the originating number of an instrument or device from which a wire

or electronic communication was transmitted;

     (4)(5) “Wire communications” has the meaning set forth in § 12-5.1-1.

     12-5.2-2. Application for an order for a pen register or a trap and trace device

Application for an order for a pen register, a trap and trace device or a stingray.

      (a)(1) The attorney general or an assistant attorney general designated by the attorney

general may make application for an order or an extension of an order pursuant to the provisions

of § 12-5.2-3 authorizing or approving the installation and use of a pen register, or a trap and trace

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device, or stingray under this chapter, in writing under oath or equivalent affirmation, to the

presiding justice of the superior court or his or her designee in order to obtain information regarding

a designated offense.

     (2) Any law enforcement officer set forth in § 12-5-3 may make application for an order or

an extension of an order under § 12-5.2-3 authorizing or approving the installation and use of a pen

register, or a trap and trace device, or stingray under this chapter, in writing under oath or equivalent

affirmation to the presiding justice of the superior court or his or her designee.

     (b) An application pursuant to subsection (a) of this section shall include:

     (1) The identity of the attorney general, assistant attorney general, or the law enforcement

officer making the application and the identity of the law enforcement agency conducting the

investigation; and

     (2) A certification by the applicant that the information likely to be obtained is relevant and

necessary to an ongoing criminal investigation, that other investigative procedures have been or are

being initiated or conducted, and that the request for the issuance of the pen register and/or trap and

trace device, or stingray is necessary to further an ongoing criminal investigation being conducted

by that agency.

     12-5.2-3. Issuance of an order for a pen register, a trap and trace device Issuance of

an order for a pen register, trap and trace device, or stingray.

     (a)(1) Upon an application made pursuant to § 12-5.2-2, the court shall enter an ex parte

order authorizing the installation and use of a pen register or a trap and trace device, or stingray if

the court is reasonably satisfied that the information likely to be obtained by the installation and

use is relevant and necessary to further an ongoing criminal investigation and that use of a pen

register, or trap and trace device, or stingray is the least intrusive way to obtain the information

sought.

     (2) An order issued under this section shall specify:

     (i) The identity, if known, of the person to whom is leased or in whose name is listed the

telephone line to which the pen register, or trap and trace device, or stingray is to be attached;

     (ii) The identity of the person who is the subject of the criminal investigation;

     (iii) The number and physical location of the telephone line to which the pen register or

trap and trace device is to be attached and, in the case if of a trap and trace device, the geographic

limits of the trap and trace device, order or stingray;

     (iv) A statement of the offense to which the information likely to be obtained by the pen

register, or trap and trace device, or stingray is relevant; and

     (v) Shall direct, upon the request of the applicant, the furnishing of information, facilities,

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and technical assistance necessary to accomplish the installation of the pen register, or trap and

trace device, or stingray under § 12-5.2-4.

     (b) An order issued pursuant to this section shall authorize the installation and use of a pen

register, or a trap and trace device, or stingray for a period not to exceed sixty (60) days.

     (c) Extensions of the order may be granted only upon an application for an order pursuant

to § 12-5.2-2, and upon the judicial finding required by subdivision (a)(1) of this section. The period

of extension shall be a period not to exceed sixty (60) days.

     (d) An order authorizing or approving the installation and use of a pen register, or a trap

and trace device, or stingray shall direct that:

     (1) The order is sealed until otherwise ordered by the court; and

     (2) The person owning or leasing the line to which the pen register, or a trap and trace

device, or stingray is attached, or who has been ordered by the court to provide assistance to the

applicant, not disclose the existence of the pen register or trap and trace device or the existence of

the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered

by the court.

     12-5.2-4. Assistance in installation and use of pen register or a trap and trace device

Assistance in installation and use of pen register, a trap and trace device or a stingray.

      (a) Upon the request of the attorney general, assistant attorney general, or law enforcement

officer authorized to install and use a pen register under this chapter, a provider of wire

communication service shall immediately furnish the attorney general, assistant attorney general,

or law enforcement officer all information, facilities, and technical assistance necessary to

accomplish the installation of the pen register or a stingray unobtrusively, and with a minimum of

interference with the services that the person so ordered by the court accords the party with respect

to whom the installation and use is to take place, if the assistance is directed by a court order as

provided in § 12-5.2-3.

     (b) Upon the request of the attorney general, assistant attorney general, or an officer of a

law enforcement agency authorized to receive the results of a trap and trace device or a stingray

under this chapter, a provider of a wire communication service shall immediately install the device

on the appropriate line and shall furnish the investigative or law enforcement officer all additional

information, facilities, and technical assistance including installation and operation of the device

unobtrusively and with a minimum of interference with the services that the person so ordered by

the court accords the party with respect to whom the installation and use is to take place, if the

installation and assistance is directed by a court order as provided in § 12-5.2-3. Unless otherwise

ordered by the court, the results of the trap and trace device or a stingray shall be furnished to the

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attorney general, assistant attorney general, or officer of a law enforcement agency, designated by

the court, at reasonable intervals during regular business hours for the duration of the order.

     (c) A provider of a wire communication service who furnishes facilities or technical

assistance pursuant to this section shall be reasonably compensated for reasonable expenses

incurred in providing these facilities and assistance.

     (d) No cause of action shall lie in any court against any provider of a wire communication

service, its officers, employees, or agents, or other specified persons for providing information,

facilities, or assistance in accordance with the terms of a court order under this chapter.

     (e) Good faith reliance on a court order, a legislative authorization, or a statutory

authorization shall be an absolute defense against any civil or criminal action brought pursuant to

this chapter or any other law.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE -- ELECTRONIC INFORMATION AND DATA

PRIVACY ACT

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     This act would require law enforcement agencies to obtain search warrants for electronic

information, data, location information and other identifying information of subscribers and

customers except in specified circumstances. Additionally, this act would prohibit the use of a

stingray cell-site simulator by any law enforcement agency except upon application for its use and

the granting of an order by the presiding justice of the superior court.

     This act would take effect upon passage.

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