Bill Text: GA HB674 | 2011-2012 | Regular Session | Introduced
Bill Title: The Interception and Disclosure of Geolocation Information Protection Act of 2011; enact
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-23 - House Second Readers [HB674 Detail]
Download: Georgia-2011-HB674-Introduced.html
12 LC
35 2353
House
Bill 674
By:
Representative Mitchell of the
88th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
enact "The Interception and Disclosure of Geolocation Information Protection Act
of 2011"; to amend Article 3 of Chapter 11 of Title 16 of the Official Code of
Georgia Annotated, relating to invasions of privacy, so as to specify the
circumstances in which a person may acquire geolocation information; to provide
for definitions; to provide for the exclusion of evidence obtained in violation
of limitations on the acquisition of geolocation information; to provide for
civil and criminal penalties; to provide for related matters; to provide for an
effective date and applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be sited as "The Interception and Disclosure of
Geolocation Information Protection Act of 2011."
SECTION
2.
Article
3 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating
to invasions of privacy, is amended by adding a new part to read as
follows:
"Part
3
16-11-90.
As
used in this part, the term:
(1)
'Covered services' means electronic communication service, remote computing
service, or a geolocation information service.
(2)
'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
that affects interstate or foreign commerce, but does not include:
(A)
Any wire or oral communication;
(B)
Any communication made through a tone-only paging device;
(C)
Any communication from a tracking device; or
(D)
Electronic funds transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of
funds.
(3)
'Electronic communication service' means any service which provides to users of
such service the ability to send or receive wire or electronic
communications.
(4)
'Electronic surveillance' means:
(A)
The acquisition by any electronic, mechanical, or other surveillance device of
the contents of any wire or radio communication sent by or intended to be
received by a particular, known person who is in this state, if the contents are
acquired by intentionally targeting that person, under circumstances in which a
person has a reasonable expectation of privacy and a warrant would be required
for law enforcement purposes;
(B)
The acquisition by any electronic, mechanical, or other surveillance device of
the contents of any wire communication to or from a person in this state,
without the consent of any party thereto, if such acquisition occurs in this
state, but does not include the acquisition of those communications of computer
trespassers that are otherwise authorized by law;
(C)
The intentional acquisition by any electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in which
a person has a reasonable expectation of privacy and a warrant would be required
for law enforcement purposes, and if both the sender and all intended recipients
are located within this state; or
(D)
The installation or use of any electronic, mechanical, or other surveillance
device in this state for monitoring to acquire information, other than from a
wire or radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law
enforcement purposes.
(5)
'Geolocation information' means, with respect to a person, any information that
is not the content of a communication, concerning the location of a wireless
communication device or tracking device that, in whole or in part, is generated
by or derived from the operation of that device and that could be used to
determine or infer information regarding the location of the
person.
(6)
'Geolocation information service' means the provision of a global positioning
service or other mapping, locational, or directional information service to the
public, or to such class of users as to be effectively available to the public,
by or through the operation of any wireless communication device, including any
mobile telephone, global positioning system receiving device, mobile computer,
or other similar or successor device.
(7)
'Intercept' means the acquisition of geolocation information through the use of
any electronic, mechanical, or other device.
(8)
'Investigative or law enforcement officer' means any officer of the United
States or of this state or a political subdivision thereof who is empowered by
law to conduct investigations of, or to make arrests for, offenses enumerated in
this part, and any attorney authorized by law to prosecute or participate in the
prosecution of such offenses.
(9)
'Person' means any employee or agent of the United States, or of this state or a
political subdivision thereof, and any individual, partnership, association,
joint stock company, trust, or corporation.
(10)
'Remote computing service' means the provision to the public of computer storage
or processing services by means of an electronic communications
system.
(11)
'Tracking device' means any electronic or mechanical device which permits the
tracking of the movement of a person or object.
(12)
'Wire communication' 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 such connection in a switching station)
furnished or operated by any person engaged in providing or operating such
facilities for the transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce.
(13)
'Wireless communication device' means any device that enables access to, or use
of, any electronic communication system or service, remote computing service, or
geolocation information service, if that device utilizes a radio or other
wireless connection to access such system or service.
16-11-91.
(a)
Unlawful
acts. Except
as otherwise provided in this part, it shall be unlawful for any person
to:
(1)
Intentionally intercept, endeavor to intercept, or procure any other person to
intercept or endeavor to intercept, geolocation information pertaining to
another person;
(2)
Intentionally disclose, or endeavor to disclose, to any other person geolocation
information pertaining to another person, knowing or having reason to know that
the information was obtained through the interception of such information in
violation of this paragraph;
(3)
Intentionally use, or endeavor to use, any geolocation information, knowing or
having reason to know that the information was obtained through the interception
of such information in violation of this paragraph; or
(4)
Intentionally disclose, or endeavor to disclose, to any other person the
geolocation information pertaining to another person intercepted by means
authorized by this Code section as provided in this Code section, while knowing
or having reason to know that the information was obtained through the
interception of such information in connection with a criminal investigation and
with intent to improperly obstruct, impede, or interfere with a duly authorized
criminal investigation.
(b)
Punishment.
Any person who violates subsection (a) of this Code section shall be guilty of a
felony and, upon conviction thereof, shall be punished by imprisonment for not
less than one nor more than five years or a fine not to exceed $10,000.00, or
both.
(c)
Exception
for information acquired in the normal course of
business. It
shall not be unlawful under this Code section for an officer, employee, or agent
of a provider of covered services, whose facilities are used in the transmission
of geolocation information, to intercept, disclose, or use that information in
the normal course of the officer, employee, or agent's employment while engaged
in any activity which is a necessary incident to the rendition of service or to
the protection of the rights or property of the provider of that service, except
that a provider of a geolocation information service to the public shall not
utilize service observing or random monitoring except for mechanical or service
quality control checks.
(d)
Exception
for conducting foreign intelligence
surveillance.
Notwithstanding any other provision of this Part, it shall not be unlawful for
an officer, employee, or agent of the United States in the normal course of the
official duty of the officer, employee, or agent to conduct electronic
surveillance, as authorized by the Foreign Intelligence Surveillance Act of
1978, 50 U.S.C. Section 1801, et seq., as amended or replaced.
(e)
Exception
for consent.
(1)
It shall not be unlawful under this Code section for a person to intercept
geolocation information pertaining to another person if such other person has
given prior consent to such interception unless such information is intercepted
for the purpose of committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of this state.
(2)
It shall not be unlawful for a parent or legal guardian of a child, under age
18, to intercept geolocation information pertaining to that child or to give
consent for another person to intercept such information.
(f)
Exception
for public
information.
It shall not be unlawful under this Code section for any person to intercept or
access geolocation information relating to another person through any system
that is configured so that such information is readily accessible to the general
public.
(g)
Exception
for emergency
information.
It shall not be unlawful under this Code section for any investigative or law
enforcement officer or other emergency responder to intercept or access
geolocation information relating to a person if such information is
used:
(1)
To respond to a request made by such person for assistance; or
(2)
In circumstances in which it is reasonable to believe that the life or safety of
a person is threatened, to assist such threatened person.
(h)
Exception
for the investigation of theft or
fraud. It
shall not be unlawful under this Code section for a person to intercept
geolocation information pertaining to the location of another person who has
unlawfully taken the device sending the geolocation information if the owner or
operator of such device authorizes the interception of the person's geolocation
information and such person is lawfully engaged in an
investigation.
(i)
Exception
for obtaining information pursuant to a
warrant. This
Code section shall not apply to any person obtaining information pursuant to a
warrant. A good faith reliance on a court order or legislative authorization
shall constitute a complete defense to any civil or criminal action brought
under this Code section.
(j)
Exception
for person providing covered
services. A
person providing covered services may divulge geolocation information of another
person:
(1)
With the lawful consent of such other person;
(2)
To another person employed or authorized, or whose facilities are used, to
forward such geolocation information to its destination; or
(3)
Which was inadvertently obtained by the service provider and which appears to
pertain to the commission of a crime, if such divulgence is made to a law
enforcement agency.
16-11-92.
Whenever
any geolocation information has been acquired, no part of such information and
no evidence derived therefrom may be received in evidence in any trial, hearing,
or other proceeding in or before any court, grand jury, department, officer,
agency, regulatory body, legislative committee, or other authority of this state
or a political subdivision of this state if the disclosure of that information
would be in violation of this part.
16-11-93.
(a)
Notwithstanding any other provision of this part, any investigative or law
enforcement officer, specially designated by the Attorney General or a
prosecuting attorney, may intercept geolocation information if such officer
reasonably determines that an emergency situation exists that
involves:
(1)
Immediate danger of death or serious physical injury to any person;
(2)
Conspiratorial activities threatening national or state security interest;
or
(3)
Conspiratorial activities characteristic of organized crime; and
requires
geolocation information be intercepted before an order authorizing such
interception can, with due diligence, be obtained.
(b)
An application for an order approving such interception shall be made within 48
hours after the interception has occurred or begins to occur. In the absence of
an order, an interception of geolocation information carried out under
subsection (a) of this Code section shall immediately terminate when the
information sought is obtained or when the application for the order is denied,
whichever is earlier. In the event such application for approval is denied, the
geolocation information shall not be admissible in any civil or criminal
proceeding.
16-11-94.
(a)
Any person whose geolocation information is intercepted, disclosed, or
intentionally used in violation of this part is authorized to, in a civil
action, recover from the person who engaged in that violation such relief as may
be appropriate.
(b)
In an action under this Code section, appropriate relief includes:
(1)
Such preliminary and other equitable or declaratory relief as may be
appropriate;
(2)
Damages under subsection (c) of this Code section and punitive damages in
appropriate cases; and
(3)
Reasonable attorney's fees and other litigation costs reasonably
incurred.
(c)
The court may assess as damages under this Code section whichever is the greater
of:
(1)
The sum of the actual damages suffered by the plaintiff and any profits made by
the violator as a result of the violation; or
(2)
Statutory damages of whichever is the greater of $100.00 a day for each day of
violation or $10,000.00.
(d)
It is a complete defense against any civil or criminal action brought against
any person for conduct in violation of this part if such person acted in a good
faith reliance on:
(1)
A court warrant or order, a grand jury subpoena, a legislative authorization, or
a statutory authorization;
(2)
A request of an investigative or law enforcement officer; or
(3)
A good-faith determination that an exception under Code Section 16-11-91
permitted the conduct complained of.
(e)
A civil action under this Code section may not be commenced later than one year
after the date upon which the claimant first has a reasonable opportunity to
discover the violation."
SECTION
3.
This
Act shall become effective on July 1, 2012, and shall apply to offenses and
violations committed on or after such date.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.
