Introduced By: Reps. Kilmartin, Corvese and Menard
Date Introduced : February 2, 1999
It is enacted by the General Assembly as follows:
SECTION 1. Section 11-35-21 of the General Laws in Chapter 11-35 entitled "Public Utilities" is hereby amended to read as follows:
11-35-21. {DEL Unauthorized interception,
disclosure or use of wire, or oral communication. DEL} {ADD -- Unauthorized interception, disclosure or use of wire, electronic,
or oral communication. ADD} {DEL - - DEL}
(a) Except as otherwise specifically provided in chapter [5.1
of title 12], any person:
(1) Who willfully intercepts, attempts to intercept, or procures any other person to intercept or attempt to intercept, any wire {ADD , ADD} {ADD electronic, ADD} or oral communication; or
(2) Who willfully discloses or attempts to disclose to any person the contents of any wire {ADD , electronic, ADD} or oral communication, knowing, or having reason to know that the information was obtained through interception of a wire {ADD , electronic, ADD} or oral communication in violation of this section; or
(3) Who willfully uses or attempts to use the contents of any wire {ADD ,electronic, ADD} or oral communication, knowing, or having reason to know, that the information was obtained through interception of a wire {ADD ,electronic, ADD} or oral communication in violation of this section;
shall be imprisoned for not more than five (5) years.
(b) The provisions of subdivisions (a)(2) and (3) of this section shall not apply to the contents of any wire {ADD ,electronic, ADD} or oral communication, or evidence derived from those contents, which has become common knowledge or public information.
(c) It shall not be unlawful under this chapter for:
(1) An operator of a switchboard, or an officer, agent, or employee of a communication common carrier, whose facilities are used in the transmission of a wire {ADD ,electronic, or oral ADD} communication, to intercept, disclose, or use that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the carrier of the communication. No communication common carrier shall utilize service observing or random monitoring except for mechanical or service quality control checks; or
(2) A person acting under color of law to intercept a wire {ADD ,electronic, ADD} or oral communication, where such person is a party to the communication, or where one of the parties to the communication has given prior consent to the interception; or
(3) A person not acting under color of law to intercept a wire {ADD ,electronic, ADD} or oral communication, where the person is a party to the communication, or one of the parties to the communication has given prior consent to the interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in the violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.
SECTION 2. Sections 12-5.1-1, 12-5.1-2, 12-5.1-3, 12-5.1-4, 12-5.1-5, 12-5.1-6, 12-5.1-8, 12-5.1-9, 12-5.1-10, 12-5.1-11, 12-5.1-12, 12-5.1-13 of the General Laws in Chapter 12-5.1 entitled "Interception of Wire and Oral Communications" are hereby amended to read as follows:
12-5.1-1. Definitions. -- As used in this chapter:
(1) The term "aggrieved person" means an individual who was a party to any intercepted wire {ADD , electronic, ADD} or oral communication or against whom the interception was directed.
(2) The term "communications common carrier" {DEL means
any person engaged as a common carrier for hire in the transmission
of communications by wire or radio. DEL} {ADD shall have the
same meaning which is given the term "common carrier"
by section 153(h) of title 47 of the United States Code ADD}.
(3) The term "contents", when used with respect to any wire {ADD , electronic, ADD} or oral communication, includes any information concerning the identity of the parties to that communication or the existence, substance, purport, or meaning of that communication.
(4) The term "designated offense" shall mean the offenses of murder, robbery, kidnapping, extortion, assault with a dangerous weapon, and assault with intent to rob or murder; arson in the first degree, arson in the second degree, or arson in the third degree; bribery or larceny involving the receipt of stolen property of a value of more than five hundred dollars ($500); any violation of chapter 28 of title 21 where the offense is punishable by imprisonment for more than one (1) year; any violation of chapters 19, 47, or 51 of title 11, where the offense is punishable by imprisonment for more than one year; the lending of money at a rate of interest in violation of law; {ADD being a fugitive from justice for any of the foregoing offenses; ADD} and conspiracy to commit any of the foregoing offenses.
(5) The term "intercept" means {DEL to acquire aurally DEL}
{ADD aural or other acquisition of ADD} the contents of any wire {ADD , ADD}
{DEL or DEL} {ADD electronic, or ADD} oral communication
through the use of any {DEL intercepting DEL} {ADD electronic,
mechanical or other ADD}device.
(6) {DEL The term "intercepting device" means any
device or apparatus which can be used to intercept wire or oral
communications DEL} {ADD The term "Electronic, mechanical,
or other device" means any device or apparatus which can
be used to intercept wire, electronic, or oral communications ADD}
other than:
(A) Any telephone or telegraph instrument, equipment, or facility
or any component thereof, furnished to the subscriber or user
by a {DEL communications common carrier DEL} {ADD provider
of wire or electronic communication service ADD} in the ordinary
course of its business, {DEL used by a subscriber or user of
facilities of a communications common carrier, or by a communications
common carrier in the ordinary course of its business, or by an
investigative DEL} {ADD and being used by the subscriber or
user in the ordinary course of business, or by an investigative ADD}
or law enforcement officer in the ordinary course of his duties;
or
(B) a hearing aid or similar device which is being used to correct subnormal hearing to normal.
(7) The term "investigative or law enforcement officer" means any officer of the United States, this state, or a political subdivision of this state, who is empowered by law to conduct investigations of, or to make arrests for, the designated offenses, the attorney general, and his or her assistants.
(8) The term "oral communications" means any oral communication
uttered by a person exhibiting an expectation that such communication
is not subject to interception under circumstances justifying
such expectation {DEL . DEL} {ADD , but such term does not
include any electronic communication. ADD}
(9) The term "person" means any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent, or employee of the United States, a state, or a political subdivision of a state.
(10) The term "wire communications" means any {DEL communication DEL}
{ADD aural transfer ADD} 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, {ADD (including the use of such
connection in a switching station) ADD} furnished or operated by
any person engaged {DEL as a common carrier in providing or
operating such facilities for the transmission of communications. DEL}
{ADD in providing or operating such facilities for the transmission
of communications and such term includes any electronic storage
of such communication. ADD} {DEL DEL}
{ADD (11) The term "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system, but does not include: ADD}
{ADD (A) any wire or oral communication; ADD}
{ADD (B) any communication made through a tone-only paging device; or ADD}
{ADD (C) any communication from a tracking device. ADD}
{ADD (12) the term "user" means any person or entity who: ADD}
{ADD (A) uses an electronic communication service; and ADD}
{ADD (B) is duly authorized by the provider of such service to engage in such use; photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications; ADD}
{ADD (13) The term "electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications. ADD}
12-5.1-2. Application for orders. -- (a) The attorney general, or an assistant attorney general specially designated by the attorney general, may apply ex parte to the presiding justice of the superior court of competent jurisdiction for an order authorizing the interception of any wire {ADD ,electronic, ADD} or oral communications. Each application ex parte for an order must be in writing, subscribed and sworn to by the applicant.
(b) The application must contain:
(1) The identity of the officer making the application;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including: (i) details as to the particular designated offense that has been, is being, or is about to be committed; (ii) a particular description of the nature and location of the facilities from which, or the place where, the communication is to be intercepted; (iii) a particular description of the type of communications sought to be intercepted; and (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
(3) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(4) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization of interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(5) A full and complete statement of the facts concerning all previous applications, known to the individual making the application, made to the presiding justice of the superior court for authorization to intercept wire {ADD , electronic, ADD} or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the presiding justice of the superior court on each application; and
(6) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain the results.
(c) The presiding justice of the superior court may require the applicant to furnish additional testimony or documentary evidence in support of the application.
(d) Allegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the fact alleged, it must be so stated. If the facts establishing reasonable cause are derived in whole or in part from the statements of persons other than the applicant, the sources of the information and belief must be either disclosed or described, and the application must contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by the informant. The application must also state, so far as possible, the basis of the informant's knowledge or belief. If the applicant's information and belief is derived from tangible evidence or recorded oral evidence, a copy or detailed description thereof should be annexed to or included in the application. Affidavits of persons other than the applicant must be submitted in conjunction with the application if they tend to support any fact or conclusion alleged in the application. Accompanying affidavits may be based either on personal knowledge of the affiant, or information and belief with the source of the information and reason for the belief specified.
12-5.1-3. Where application may be made. -- Application for an order to intercept wire {ADD , electronic, ADD} or oral communication may be made to the presiding justice of the superior court or the senior associate justice of the superior court whenever the presiding justice shall deem it necessary to disqualify himself or herself from entering such order.
12-5.1-4. Issuance of orders. -- (a) Upon such application the presiding justice of the superior court or the senior associate justice of the superior court when the presiding justice shall disqualify himself or herself from entering the order may enter an ex parte order, as required or as modified, authorizing the interception of wire {ADD , electronic, ADD} or oral communications if the presiding justice of the superior court determines on the basis of the facts submitted by the applicant that:
(1) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular designated offense;
(2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried, or to be too dangerous;
(4) There is probable cause for belief that the facilities from which, or the place where, the wire {ADD , electronic, ADD} or oral communications are to be intercepted, are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the individual.
(b) If the facilities from which {DEL a DEL} wire {ADD ,
electronic, or oral ADD} communication is to be intercepted are
public, no order of authorization shall be issued unless the court,
in addition to the matters provided in subsection (a) of this
section, determines that there is a special need to intercept
wire communications over the facilities.
(c) If the facilities from which, or the place where, the wire {ADD , electronic, ADD} or oral communications are to be intercepted, are being used, or are about to be used, or are leased to, listed in the name of, or commonly used by, a licensed attorney-at-law, or an ordained minister of the gospel, priest, or rabbi of any denomination, or is a place used primarily for habitation by a husband and wife, no order shall be issued unless the presiding justice of the superior court, in addition to the matters provided in subsection (a) of this section, determines that there is a special need to intercept wire {ADD , electronic, ADD} or oral communications over such facilities or in those places, and that the interceptions will be so conducted as to minimize or eliminate interception of privileged communication between lawyers and clients, clergymen and confidants, or husbands and wives.
12-5.1-5. Form and content of orders. -- (a) Each order authorizing the interception of any wire {ADD , electronic, ADD} or oral communication shall specify:
(1) The identity, or a particular description of the person, if known, whose communications are to be intercepted;
(2) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(3) A particular description of the type of communications sought to be intercepted, and a statement of the particular offense to which they relate;
(4) The identity of the agency authorized to intercept the communications; and
(5) The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
(b) No order entered under this section may authorize the interception of any wire {ADD ,electronic, ADD} or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty (30) days. Extensions of an order may be granted, but only upon application for an extension made in accordance with section 12-5.1-2 and the court making the findings required by section 12-5.1-4. The period of extension shall be no longer than the presiding justice of the superior court deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty (30) days. Every order and extension shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty (30) days.
(c) Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the presiding justice of the superior court who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. These reports shall be made at such intervals as the presiding justice of the superior court may require.
(d) A court order issued by a judge of competent jurisdiction authorizing the interception of a wire {ADD ,electronic, ADD} or oral communication may direct an officer, employee, or agent of any communications common carrier {ADD or electronic communications service ADD} to provide information, facilities, and technical assistance to the applicant attorney general or an assistant attorney general specially designated by the attorney general or law enforcement officer/agency who, pursuant to this chapter, is designated to intercept a wire {ADD ,electronic, ADD} or oral communication. The communications common carrier {ADD or electronic communication service ADD} shall, if ordered, furnish the applicant attorney general or assistant attorney general specially designated by the attorney general forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such communications carrier {ADD or electronic communication service ADD} is according the person whose communications are to be intercepted. A communications common carrier {ADD or electronic communication service ADD} shall furnish the information, facilities, and technical assistance at its prevailing rate or tariffs to the applicant attorney general or assistant attorney general specially designated by the attorney general or law enforcement officer/agency so designated to intercept a wire {ADD ,electronic, ADD} or oral communication.
12-5.1-6. Approval of interception of wire or oral communication. -- (a) An order of approval of the interception of any wire {ADD ,electronic, ADD} or oral communication relating to an offense other than that specified in the order of authorization may be issued where the court finds on an application for an order of approval submitted in the same manner as an application for authorization as provided in section 12-5.1-2 that the interception was otherwise made in accordance with this chapter. This application shall be made as soon as practicable.
(b) In addition to any other right to appeal, the state, by the attorney general, shall have the right to appeal from a denial of an order of approval made under this section. The appeal shall be claimed and taken in the manner provided by law and rule of court for prosecuting appeals in civil actions.
12-5.1-8. Maintenance and custody of records. -- (a) The contents of any wire {ADD ,electronic, ADD} or oral communication intercepted by any means authorized by this chapter shall, if practicable, be recorded on tape or wire or other comparable device. The recording of the contents of any wire {ADD ,electronic, ADD} or oral communication under this section shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of the order, the recordings shall be made available to the presiding justice of the superior court issuing the order and sealed under his or her directions. Custody of the recordings shall be wherever the presiding justice of the superior court orders. They shall not be destroyed except upon an order of the presiding justice of the superior court, and in any event, shall be kept for ten (10) years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (a) and (b) of section 12-5.1-10 for investigations and bail hearings and any pre-trial hearings. The presence of the seal provided for by this section, or a satisfactory explanation for its absence, shall be a prerequisite for the use or disclosure of the contents of any wire {ADD ,electronic, ADD} or oral communication or evidence derived from them at any bail hearing or pre-trial hearing.
(b) Applications made and orders granted under this chapter shall be sealed by the presiding justice of the superior court. Custody of the applications and orders shall be wherever the presiding justice of the superior court directs. The applications and orders shall be disclosed only upon a showing of good cause before the presiding justice of the superior court and shall not be destroyed except on order of the presiding justice of the superior court, and in any event shall be kept for ten (10) years.
(c) Any violation of the provisions of this section may be punished as contempt of the presiding justice of the superior court.
12-5.1-9. Return of inventory. -- (a) Within a reasonable time but not later than ninety (90) days after the termination of the period of the order or of extensions of the order, the presiding justice of the superior court shall cause to be served on the person named in the order or application, and such other parties to the intercepted communications as the presiding justice of the superior court may determine in his or her direction to be in the interest of justice, an inventory which shall include:
(1) Notice of the entry of the order or the application for a denied order of approval;
(2) The date of the entry of the order or the denial of the application for an order of approval;
(3) The period of authorized, approved or disapproved interception;
(4) The fact that during the period wire {ADD ,electronic, ADD} or oral communications were or were not intercepted.
(b) The judge, upon the filing of a motion, may in his or her discretion make available to the person or the person's counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the judge, the serving of the inventory required by this section may be postponed.
12-5.1-10. Disclosure and use of intercepted wire or oral communications. -- (a) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire {ADD ,electronic, ADD} or oral communication, or evidence derived from them, may disclose the contents to another investigative or law enforcement officer to the extent that disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(b) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire {ADD ,electronic, ADD} or oral communication or evidence derived from them may use the contents to the extent that their use is appropriate to the proper performance of his or her official duties.
(c) Any person who has received, by any means authorized by this chapter, any information concerning a wire {ADD ,electronic, ADD} or oral communication, or evidence derived from them intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of this or any other state or in any federal or state grand jury proceeding.
(d) No otherwise privileged wire {ADD ,electronic, ADD} or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.
12-5.1-11. Notice of intention. -- The contents of any intercepted wire {ADD ,electronic, ADD} or oral communication or evidence derived from them shall not be received in evidence or otherwise disclosed in any criminal proceeding unless each party, not less than ten (10) days before the proceeding has been furnished with a copy of the application, order, and inventory under which the interception was authorized or approved. This ten (10) day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the information more than ten (10) days before the proceeding and that the party will not be prejudiced by the delay in receiving the information.
12-5.1-12. Suppression of evidence. -- (a) Any aggrieved person may move to suppress the contents of any intercepted wire {ADD ,electronic, ADD} or oral communication or evidence derived from them, on the grounds that:
(1) The communication was unlawfully intercepted;
(2) The order under which it was intercepted is insufficient on its face;
(3) The interception was not made in conformity with the order;
(4) Service was not made as provided in section 12-5.1-11; or
(5) The seal provided in subsection (b) of section 12-5.1-8 is not present and there is no satisfactory explanation for its absence.
(b) A motion under this section shall be made before the trial, unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire {ADD ,electronic, ADD} or oral communication, or evidence derived from them, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his or her discretion make available to the aggrieved person or the person's counsel for inspection such portions of the intercepted communication or evidence derived from them as the judge determines to be in the interests of justice.
(c) If such motion shall be made before any court or judge other than the presiding justice of the superior court, the motion shall be transferred to the presiding justice of the superior court or to an associate justice of the superior court who shall be designated by the presiding justice, or by the associate justice in charge of the criminal calendar in Providence County whenever the presiding justice shall deem it necessary to disqualify himself or herself, for hearing and determination. No motion under this section shall be heard or determined by a district court in preliminary proceedings, or otherwise.
(d) In addition to any other right of appeal, the state, by the attorney general, shall have the right to appeal from an order allowing a motion to suppress made under this section. Such appeal shall be taken within thirty (30) days after the date of allowance of the motion to suppress. If the motion to suppress is allowed prior to trial, the appeal shall be decided prior to trial. If the motion to suppress is allowed during trial and the attorney general shall claim an appeal, the evidence shall be admitted at trial, and the question of admissibility reserved for the supreme court.
12-5.1-13. Civil remedy. -- (a) Any person whose wire {ADD ,electronic, ADD} or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses the communications, and shall be entitled to recover from that person:
(1) Actual damages, but not less than liquidated damages, computed at the rate of one hundred dollars ($100) per day for each day of violation, or one thousand dollars ($1,000), whichever is higher;
(2) Punitive damages; and
(3) Reasonable attorneys' fees and other litigation disbursements reasonably incurred.
(b) Good faith reliance on a court order issued under this chapter shall constitute a complete defense to any civil or criminal action brought under this section or any other law. Any communications common carrier and its employees shall be deemed to have acted in good faith upon receipt of a certified copy of the court order issued under this chapter and the representations of the attorney general or an assistant attorney general specially designated by the attorney general.
SECTION 3. This act shall take effect upon passage.
