Bill Text: HI SB465 | 2020 | Regular Session | Introduced


Bill Title: Relating To Electronic Eavesdropping.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2019-12-01 - Carried over to 2020 Regular Session. [SB465 Detail]

Download: Hawaii-2020-SB465-Introduced.html

THE SENATE

S.B. NO.

465

THIRTIETH LEGISLATURE, 2019

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to electronic eavesdropping.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Chapter 803, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

     "§803-    Cell site simulator device; collected data; prohibition; exceptions.  The State or any of its political subdivisions shall not collect or use a person's electronic data or metadata by means of a cell site simulator device without:

     (1)  That person's informed consent;

     (2)  A warrant, based upon probable cause, that describes with particularity the person, place, or thing to be searched or seized;

     (3)  Acting in accordance with a legally recognized exception to the warrant requirements; or

     (4)  A good faith belief that an emergency involving a danger of death or serious bodily injury to any person requires the use of a cell site simulator device without delay, in which case the government entity that collects or uses the data shall comply with the reporting requirements set for in section 803-47."

     SECTION 2.  Section 803-41, Hawaii Revised Statutes, is amended as follows:

     1.  By adding a new definition to be appropriately inserted and to read:

     ""Cell site simulator device" means a device that transmits or receives radio waves for the purpose of conducting one or more of the following operations:

     (1)  Identifying, locating, or tracking the movements of a communications device;

     (2)  Intercepting, obtaining, accessing, or forwarding the communications, stored data, or metadata of a communications device;

     (3)  Affecting the hardware or software operations or functions of a communications device;

     (4)  Forcing transmissions from or connections to a communications device;

     (5)  Denying a communications device access to other communications devices, communications protocols, or services; or

     (6)  Spoofing or simulating a communications device, cell tower, cell site, or service, including but not limited to an international mobile subscriber identity catcher or other invasive cell phone or telephone surveillance or eavesdropping device that mimics a cell phone tower and sends out signals to cause cell phones in the area to transmit their locations, identifying information, and communications content, or a passive interception device or digital analyzer that does not send signals to a communications device under surveillance.

A cell site simulator device shall not include any device used or installed by an electric utility solely to the extent that the device is used by that utility to measure electrical usage, provide services to customers, or operate the electric grid or any device used as part of the State's 911 emergency system for the purpose of rendering emergency aid or assistance."

     2.  By amending the definition of "electronic communication" to read:

     ""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 photo-optical system that affects intrastate, interstate, or foreign commerce.  The term "electronic communication" includes[,] but is not limited to[,] "display pagers" which can display [[]a[]] visual message as part of the paging process, but does not include:

     (1)  Any wire or oral communication;

     (2)  Any communication made through a tone-only paging device;

     (3)  Any communication from a tracking device[;], but solely to the extent the tracking device is owned by the applicable law enforcement agency; or

     (4)  Electronic funds transfer information stored by [[]a[]] financial institution in a communications system used for the electronic storage and transfer of funds."

     SECTION 3.  Section 803-42, Hawaii Revised Statutes, is amended to read as follows:

     "§803-42  Interception, access, and disclosure of wire, oral, or electronic communications, use of pen register, trap and trace device, cell site simulator device, and mobile tracking device prohibited.  (a)  Except as otherwise specifically provided in this part, any person who:

     (1)  Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

     (2)  Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any wire, oral, or electronic communication when:

          (A)  Such a device is affixed to, or otherwise transmits a signal through, a wire, cable, or other similar connection used in wire communication; or

          (B)  Such a device transmits communications by radio, or interferes with the transmission of such communication;

     (3)  Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;

     (4)  Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;

     (5)  (A)  Intentionally accesses without authorization a facility through which an electronic communication service is provided; or

          (B)  Intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage;

     (6)  Intentionally discloses, or attempts to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by subsection (b)(1), (2), or (3), or section 803‑44 or 803‑46; and

          (A)  Either:

               (i)  Knowing or having reason to know that the information was obtained through the interception of the communication in connection with a criminal investigation; or

              (ii)  Having obtained or received the information in connection with a criminal investigation; and

          (B)  With the intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation[[];[]]

     (7)  Intentionally installs or uses a pen register [or a], trap and trace device, or cell site simulator device without first obtaining a court order; or

     (8)  Intentionally installs or uses a mobile tracking device without first obtaining a search warrant or other order authorizing the installation and use of such device, unless the device is installed by or with consent of the owner of the property on which the device is installed;

shall be guilty of a class C felony.

  (b)(1)  It shall not be unlawful under this part for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication services, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of the officer's, employee's, or agent's employment while engaged in any activity that is either a necessary incident to the rendition of the officer's, employee's, or agent's service or to the protection of the rights or property of the provider of that service; provided that providers of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

     (2)  It shall not be unlawful under this part for an officer, employee, or agent of the Federal Communications Commission, in the normal course of the officer's, employee's, or agent's employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of title 47, chapter 5, of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

     (3)  (A)  It shall not be unlawful under this part for a person not acting under color of law to intercept a wire, oral, or electronic communication when the person is a party to the communication or when one of the parties to the communication has given prior consent to the interception unless the communication 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.

          (B)  It shall not be unlawful for a person acting under color of law to install in any private place, without consent of the person or persons entitled to privacy therein, any device for recording, amplifying, or broadcasting sounds or events in that place, or use of any such unauthorized installation, or install or use outside a private place any such device to intercept sounds originating in that place which would not ordinarily be audible or comprehensible outside.

     (4)  It shall not be unlawful under this part for a person acting under color of law to intercept a wire, oral, or electronic communication, when the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

     (5)  It shall not be unlawful under this part for any person to intercept a wire, oral, or electronic communication, or to disclose or use the contents of an intercepted communication, when such interception is pursuant to a valid court order under this chapter or otherwise authorized by law; provided that a communications provider with knowledge of an interception of communications accomplished through the use of the communications provider's facilities shall report the fact and duration of the interception to the administrative director of the courts of this State.

     (6)  Notwithstanding any other law to the contrary, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept or access wire, oral, or electronic communications, to conduct electronic surveillance, or to install a pen register [or], trap and trace device, or cell site simulator device if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with:

          (A)  A court order directing such assistance signed by the designated judge; or

          (B)  A certification in writing from the Attorney General of the United States, the Deputy Attorney General of the United States, the Associate Attorney General of the United States, the attorney general of the State of Hawaii, or the prosecuting attorney for each county that no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required, setting forth the period of time during which the providing of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required.

                    No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any access, interception, or surveillance or the device used to accomplish the interception or surveillance for which the person has been furnished a court order or certification under this part, except as may otherwise be required by legal process and then only after prior notification to the party that provided the court order or certification.

                    No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this part.

     (7)  It shall not be unlawful under this part for any person:

          (A)  To intercept or access an electronic communication made through an electronic communication system configured so that the electronic communication is readily accessible to the general public.

          (B)  To intercept any radio communication that is transmitted:

               (i)  By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;

              (ii)  By any governmental, law enforcement, emergency management, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

             (iii)  By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

              (iv)  By any marine or aeronautical communications system.

          (C)  To engage in any conduct that:

               (i)  Is prohibited by section 633 of the Communications Act of 1934 (47 U.S.C. §553); or

              (ii)  Is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act (47 U.S.C. §605).

          (D)  To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference.

          (E)  For other users of the same frequency to intercept any radio communication made through a system that uses frequencies monitored by individuals engaged in the providing or the use of the system, if the communication is not scrambled or encrypted.

     (8)  It shall not be unlawful under this part:

          (A)  To use a pen register [or a], trap and trace device, or cell site simulator device as specified in this part.

          (B)  For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from the fraudulent, unlawful, or abusive use of such service.

          (C)  For a provider of electronic or wire communication service to use a pen register [or a], trap and trace device, or cell site simulator device for purposes relating to the operation, maintenance, and testing of the wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service.

          (D)  To use a pen register [or a], trap and trace device, or cell site simulator device where consent of the user of the service has been obtained.

     (9)  Good faith reliance upon a court order shall be a complete defense to any criminal prosecution for illegal interception, disclosure, or use.

    (10)  Except as provided in this section, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than a communication to the person or entity or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

    (11)  A person or entity providing electronic communication service to the public may divulge the contents of any such communication:

          (A)  As otherwise authorized by a court order or under this part;

          (B)  With the lawful consent of the originator, addressee, or intended recipient of the communication;

          (C)  To a person employed or authorized, or whose facilities are used, to forward the communication to its destination;

          (D)  That was inadvertently obtained by the service provider and that appears to pertain to the commission of a crime, if divulged to a law enforcement agency; or

          (E)  To a law enforcement agency, public safety agency, or public safety answering point if the provider, in good faith, believes that an emergency involving danger of death or serious bodily injury to any person requires disclosure without delay of communications relating to the emergency, and is provided with a certification in writing from the governmental entity that provides the facts and circumstances establishing the existence of the emergency, that the specific disclosure is required, and sets forth the period of time during which the disclosure of the information is authorized and specifies the information required.

     No cause of action shall lie in any court against any provider of electronic communication service, its officers, employees, or agents, custodian, or other specified person for disclosing information in accordance with the terms of a certification under this part."

     SECTION 4.  Section 803-44.5, Hawaii Revised Statutes, is amended to read as follows:

     "§803-44.5  Application for a pen register [or a], trap and trace device[.], or cell site simulator device.  (a)  The attorney general of this State or the prosecuting attorney for each county, or a subordinate designated to act in either's absence or incapacity, may apply in writing under oath or equivalent affirmation to a designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, for an order or an extension of an order to authorize the installation and use of a pen register [or a], trap and trace device[.], or cell site simulator device.

     (b)  The application shall include:

     (1)  The identity of the official making the application and the law enforcement agency conducting the investigation; and

     (2)  The facts and circumstances relied upon by the applicant to conclude that there is probable cause to believe that information will be obtained through the installation and use of a pen register [or], trap and trace device, or cell site simulator device that will constitute the fruits, instrumentalities, or evidence of a crime covered under this part."

     SECTION 5.  Section 803-44.6, Hawaii Revised Statutes, is amended to read as follows:

     "§803-44.6  Issuance of an order for a pen register [or a], trap and trace device[.], or cell site simulator device.  (a)  Upon an application for an order authorizing the installation and use of a pen register [or a], trap and trace device, or cell site simulator device, the designated judge shall satisfy itself that there are sufficient facts and circumstances contained within the application that there is probable cause to believe that the information to be obtained through the installation and use of a pen register [or a], trap and trace device, or cell site simulator device will constitute the fruits, instrumentalities, or evidence of a crime or is relevant to an ongoing criminal investigation.

     (b)  If the designated judge is so satisfied, the order issued shall specify:

     (1)  In the case of a pen register or trap and trace device:

          (A)  The identity, if known, of the person to whom is leased or in whose name is listed the telephone line, cellular telephone, or electronic device or service to which the pen register or trap and trace device is to be attached;

    [(2)] (B)  The identity, if known, of the person who is the subject of the criminal investigation;

    [(3)] (C)  The number and, if known, the physical location of the telephone line, cellular telephone, or electronic device or service to which the pen register or the trap and trace device is to be attached, and, in the case of a trap and trace device, the geographical limits of the trap and trace order;

    [(4)] (D)  A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and

    [(5)] (E)  Upon the request of the applicant, the information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device that the provider of wire communication service is directed to furnish to the applicant[.]; or

     (2)  In the case of a cell site simulator device:

          (A)  The identity, if known, of:

               (i)  The person to whom is subscribed or in whose name is subscribed the electronic communication service utilized by the device to which the cell site simulator device is to be used; and

              (ii)  The person who possesses the device to which the cell site simulator device is to be used;

          (B)  The telephone number or other unique subscriber account number identifying the wire or electronic communication service account used by the device to which the cell site simulator device is to be attached or used;

          (C)  If known, the physical location of the device to which the cell site simulator device is to be attached or used;

          (D)  The type of device, and the communications protocols being used by the device, to which the cell site simulator device is to be attached or used;

          (E)  The geographic area that will be covered by the cell site simulator device;

          (F)  All categories of metadata, data, or information to be collected by the cell site simulator device from the targeted device, including but not limited to call records and geolocation information;

          (G)  Whether or not the cell site simulator device will incidentally collect metadata, data, or information from any parties or devices not specified in the court order, and if so, what categories of information or metadata will be collected;

          (H)  Any disruptions to access or use of a communications or internet access network that may be created by use of the device; and

          (I)  A statement of the offense to which the information likely to be obtained by the cell site simulator device relates.

     (c)  An order authorizing installation and use of a pen register [or a], trap and trace device, or cell site simulator device shall be for a period not to exceed sixty days.  Extension of an order may be granted, but only upon a reapplication for an order and a finding of probable cause to justify continuing use of a pen register [or], trap and trace device[.], or cell site simulator device.  The period of the extension shall be for a period not to exceed sixty days.

     (d)  An order authorizing the installation and use of a pen register [or a], trap and trace device, or cell site simulator device shall direct that:

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

     (2)  The person owning or leasing the telephone line, cellular telephone, or electronic device or service to which the pen register [or], trap and trace device, or cell site simulator device is attached[,] or used, 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 cell site simulator device or the existence of the investigation to the listed subscriber or to any other person, unless otherwise ordered by the court."

     SECTION 6.  Section 803-47, Hawaii Revised Statutes, is amended as follows:

     1.  By amending its title to read:

     "§803-47  Reports concerning intercepted wire, oral, or electronic communications; reports concerning pen registers [and], trap and trace devices[.], and cell site simulator devices."

     2.  By amending subsection (c) to read:

     "(c)  The attorney general, at least twenty days prior to the convening of each regular session, shall annually report to the legislature on the number of pen register orders [and], orders for trap and trace devices, and orders for cell site simulator devices applied for by law enforcement agencies of the State."

     SECTION 7.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect on July 1, 2019.

 

INTRODUCED BY:

_____________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


 

Report Title:

Cell Site Simulator Device; Data; Electronic Eavesdropping; Court Order

 

Description:

Prohibits the State and its political subdivisions from collecting or using a person's electronic data or metadata by means of a cell site simulator device, except under certain conditions.  Prohibits the installation and use of a cell site simulator device without a court order.  Specifies conditions when a cell site simulator device may be used.  Specifies procedures for application and issuance of an order for a cell site simulator device.  Specifies reporting requirements related to cell site simulator device applications.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

feedback