Bill Text: IA HF2222 | 2015-2016 | 86th General Assembly | Introduced
Bill Title: A bill for an act creating the Iowa electronic communications privacy Act and providing remedies.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-02-10 - Introduced, referred to Public Safety. H.J. 200. [HF2222 Detail]
Download: Iowa-2015-HF2222-Introduced.html
House File 2222 - Introduced HOUSE FILE BY RIZER A BILL FOR 1 An Act creating the Iowa electronic communications privacy Act 2 and providing remedies. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 5099YH (4) 86 rh/rj PAG LIN 1 1 Section 1. NEW SECTION. 808B.1 Title. 1 2 This chapter shall be known as the "Iowa Electronic 1 3 Communications Privacy Act". 1 4 Sec. 2. NEW SECTION. 808B.2 Definitions. 1 5 As used in this chapter, unless the context otherwise 1 6 requires: 1 7 1. "Adverse result" means any of the following: 1 8 a. Danger to the life or physical safety of an individual. 1 9 b. Flight from prosecution. 1 10 c. Destruction of or tampering with evidence. 1 11 d. Intimidation of potential witnesses. 1 12 e. Serious jeopardy to an investigation or undue delay of a 1 13 trial. 1 14 2. "Authorized possessor" means the possessor of an 1 15 electronic device when that person is the owner of the 1 16 electronic device or has been authorized to possess the 1 17 electronic device by the owner of the device. 1 18 3. "Electronic communication" means the transfer of signs, 1 19 signals, writings, images, sounds, data, or intelligence of any 1 20 nature in whole or in part by a wire, radio, electromagnetic, 1 21 photoelectric, or photo=optical system. 1 22 4. "Electronic communication information" means any 1 23 information about an electronic communication or the use of an 1 24 electronic communication service, including but not limited to 1 25 the contents, sender, recipients, format, or location of the 1 26 sender or recipients at any point during the communication; the 1 27 time or date the communication was created, sent, or received; 1 28 or any information pertaining to any individual or device 1 29 participating in the communication, including but not limited 1 30 to an internet protocol address. "Electronic communication 1 31 information" does not include subscriber information as defined 1 32 in this chapter. 1 33 5. "Electronic communication service" means a service that 1 34 provides to its subscribers or users the ability to send or 1 35 receive electronic communications, including any service that 2 1 acts as an intermediary in the transmission of electronic 2 2 communications, or stores electronic communication information. 2 3 6. "Electronic device" means a device that stores, 2 4 generates, or transmits information in electronic form. 2 5 7. "Electronic device information" means any information 2 6 stored on or generated through the operation of an electronic 2 7 device, including the current and prior locations of the 2 8 electronic device. 2 9 8. "Electronic information" means electronic communication 2 10 information or electronic device information. 2 11 9. "Government entity" means a department or agency of the 2 12 state or a political subdivision of the state, or an individual 2 13 acting for or on behalf of the state or a political subdivision 2 14 of the state. 2 15 10. "Service provider" means a person or entity offering an 2 16 electronic communication service. 2 17 11. "Specific consent" means consent provided directly 2 18 to the government entity seeking information, including but 2 19 not limited to when the government entity is the addressee 2 20 or intended recipient or a member of the intended audience 2 21 of an electronic communication. "Specific consent" does not 2 22 require that the originator of the communication have actual 2 23 knowledge that an addressee, intended recipient, or member of 2 24 the specific audience is a government entity. 2 25 12. "Subscriber information" means the name, address, 2 26 telephone number, electronic mail address, or similar contact 2 27 information provided by the subscriber to the service provider 2 28 to establish or maintain an account or communication channel, 2 29 a subscriber or account number or identifier, the length 2 30 of service, and the types of services used by a user of or 2 31 subscriber to a service provider. 2 32 Sec. 3. NEW SECTION. 808B.3 Unlawful acts == exceptions. 2 33 1. a. Except as provided in subsections 2 and 3, a 2 34 government entity shall not do any of the following: 2 35 (1) Compel the production of or access to electronic 3 1 communication information from a service provider. 3 2 (2) Compel the production of or access to electronic device 3 3 information from any person or entity other than the authorized 3 4 possessor of the device. 3 5 (3) Access electronic device information by means of 3 6 physical interaction or electronic communication with the 3 7 electronic device. 3 8 b. This subsection does not prohibit the intended recipient 3 9 of an electronic communication from voluntarily disclosing 3 10 electronic communication information concerning that electronic 3 11 communication to a government entity. 3 12 2. A government entity may compel the production of or 3 13 access to electronic communication information from a service 3 14 provider, or compel the production of or access to electronic 3 15 device information from any person or entity other than the 3 16 authorized possessor of the electronic device only under the 3 17 following conditions: 3 18 a. Pursuant to a warrant issued pursuant to chapter 808 and 3 19 subject to section 808B.4. 3 20 b. Pursuant to a court order authorizing the production of 3 21 or access to electronic communication information. 3 22 c. Pursuant to a subpoena, provided that the electronic 3 23 information is not sought for the purpose of investigating 3 24 or prosecuting a criminal offense and if not otherwise 3 25 prohibited by state or federal law. This paragraph shall not 3 26 be construed to expand any authority under state law to compel 3 27 the production of or access to electronic information. 3 28 3. A government entity may access electronic device 3 29 information by means of physical interaction or electronic 3 30 communication with the electronic device only under the 3 31 following conditions: 3 32 a. Pursuant to a warrant issued pursuant to chapter 808 and 3 33 subject to section 808B.4. 3 34 b. Pursuant to a court order authorizing such access to 3 35 electronic device information. 4 1 c. With the specific consent of the authorized possessor of 4 2 the electronic device. 4 3 d. With the specific consent of the owner of the electronic 4 4 device, only when the electronic device has been reported as 4 5 lost or stolen. 4 6 e. If the government entity, in good faith, believes that 4 7 an emergency involving danger of death or serious physical 4 8 injury to any person requires access to the electronic device 4 9 information. 4 10 f. If the government entity, in good faith, believes the 4 11 electronic device to be lost, stolen, or abandoned and access 4 12 to the electronic device by the government entity is necessary 4 13 to identify, verify, or contact the authorized possessor of the 4 14 electronic device. 4 15 Sec. 4. NEW SECTION. 808B.4 Warrant requirements. 4 16 1. A warrant for electronic information shall meet all of 4 17 the following requirements: 4 18 a. Describe with particularity the electronic information 4 19 to be seized by specifying the time periods covered and, 4 20 as appropriate and reasonable, the target individuals or 4 21 accounts, the applications or services covered, and the types 4 22 of electronic information sought. 4 23 b. Require that any electronic information obtained through 4 24 the execution of the warrant that is unrelated to the objective 4 25 of the warrant be sealed and not be subject to further review, 4 26 use, or disclosure without a court order. A court shall issue 4 27 such an order upon a finding that there is probable cause 4 28 to believe that the electronic information is relevant to an 4 29 active investigation, or such review, use, or disclosure is 4 30 required by state or federal law. 4 31 c. Comply with all other provisions of state and federal 4 32 law, including any provisions prohibiting, limiting, or 4 33 imposing additional requirements on the use of search warrants. 4 34 If directed to a service provider, the warrant shall be 4 35 accompanied by an order requiring the service provider to 5 1 verify the authenticity of electronic information that it 5 2 produces by affidavit. 5 3 2. When issuing any warrant or court order for electronic 5 4 information, or upon the petition from the subject or recipient 5 5 of the warrant or court order, a court may, in its discretion, 5 6 do any of the following: 5 7 a. Appoint a referee or special master charged with ensuring 5 8 that only electronic information necessary to achieve the 5 9 objective of the warrant or order is produced or accessed. 5 10 b. Require that any electronic information obtained 5 11 through the execution of the warrant or the court order that 5 12 is unrelated to the objective of the warrant be destroyed 5 13 as soon as practicable upon the termination of the current 5 14 investigation and any related investigations or proceedings. 5 15 Sec. 5. NEW SECTION. 808B.5 Electronic communication 5 16 information == voluntary disclosure. 5 17 1. A service provider may voluntarily disclose electronic 5 18 communication information or subscriber information if not 5 19 otherwise prohibited by state or federal law. 5 20 2. If a government entity receives electronic communication 5 21 information voluntarily provided pursuant to subsection 1, the 5 22 government entity shall destroy that electronic communication 5 23 information within ninety days unless any of the following 5 24 apply: 5 25 a. The government entity has or obtains the specific consent 5 26 of the sender or recipient of the electronic communication 5 27 about which electronic communication information was disclosed. 5 28 b. The government entity obtains a court order authorizing 5 29 the retention of the electronic communication information. A 5 30 court shall issue a retention order upon a finding that the 5 31 conditions justifying the initial voluntary disclosure continue 5 32 to exist, in which case the court shall authorize the retention 5 33 of the electronic communication information only as long as 5 34 those conditions exist, or there is probable cause to believe 5 35 that the electronic communication information constitutes 6 1 evidence that a crime has been committed. 6 2 c. The entity reasonably believes that the electronic 6 3 communication information relates to child pornography and 6 4 the electronic communication information is retained as part 6 5 of a multiagency database used in the investigation of child 6 6 pornography and related crimes. 6 7 Sec. 6. NEW SECTION. 808B.6 Electronic information == 6 8 emergency. 6 9 1. If a government entity obtains electronic information 6 10 pursuant to an emergency involving the risk of death or 6 11 serious physical harm to a person that requires access to 6 12 the electronic information without delay, the government 6 13 entity shall, within three days after obtaining the electronic 6 14 information, do any of the following: 6 15 a. File an application with the court for a warrant or order 6 16 authorizing access to the electronic information. 6 17 b. File a motion with the court seeking approval of the 6 18 emergency disclosures setting forth the facts giving rise to 6 19 the emergency. 6 20 2. a. The court shall promptly rule on the application or 6 21 motion. 6 22 b. Upon a finding that the facts did not give rise to an 6 23 emergency or upon denying the warrant or order application 6 24 on any other ground, the court shall order the immediate 6 25 destruction of all electronic information obtained and shall 6 26 require the government entity to serve immediate notice 6 27 pursuant to section 808B.7, subsection 1, if such notice has 6 28 not already been given. 6 29 Sec. 7. NEW SECTION. 808B.7 Notice of electronic 6 30 information requests or provision in emergencies. 6 31 1. Except as otherwise provided in this section, any 6 32 government entity that executes a warrant or obtains electronic 6 33 information in an emergency pursuant to section 808B.6 shall 6 34 serve notice by certified or registered mail, electronic mail, 6 35 or any other means reasonably calculated to be effective, on 7 1 the identified subject of the warrant or emergency request, 7 2 that informs the identified subject that electronic information 7 3 about the subject has been compelled or requested and states 7 4 with reasonable specificity the nature of the government 7 5 investigation under which the electronic information is sought. 7 6 The notice shall include a copy of the warrant or a written 7 7 statement setting forth facts giving rise to the emergency. 7 8 The notice shall be provided contemporaneously with the 7 9 execution of a warrant, or, in the case of an emergency, within 7 10 three days after obtaining the electronic information. 7 11 2. a. When a warrant is sought or electronic information is 7 12 obtained in an emergency under section 808B.6, the government 7 13 entity may submit a request supported by a sworn affidavit 7 14 for an order delaying notification and prohibiting any party 7 15 providing electronic information from notifying any other party 7 16 that electronic information has been sought. The court shall 7 17 issue the order if the court determines there is reason to 7 18 believe that notification may have an adverse result, but only 7 19 for the period of time that the court finds there is reason to 7 20 believe that the notification may have that adverse result, not 7 21 to exceed ninety days. 7 22 b. Upon the expiration of the period of delay of the 7 23 notification, the government entity shall serve a document that 7 24 includes the electronic information described in subsection 7 25 1, a copy of all electronic information obtained or a summary 7 26 of that electronic information, including, at a minimum, the 7 27 number and types of records disclosed, the date and time when 7 28 the earliest and latest records were created, and a statement 7 29 of the grounds for the court's determination to grant a delay 7 30 in notifying the individual, by certified or registered mail, 7 31 electronic mail, or any other means reasonably calculated to 7 32 be effective, on the identified subject of the warrant or 7 33 emergency request. 7 34 Sec. 8. NEW SECTION. 808B.8 Subpoena authority. 7 35 This chapter shall not limit the authority of a government 8 1 entity to use an administrative, grand jury, trial, or civil 8 2 discovery subpoena to do any of the following: 8 3 1. Require an originator, addressee, or intended recipient 8 4 of an electronic communication to disclose any electronic 8 5 communication information associated with that electronic 8 6 communication. 8 7 2. Require an entity that provides electronic communication 8 8 services to its officers, directors, employees, or agents 8 9 for the purpose of carrying out their duties, to disclose 8 10 electronic communication information associated with an 8 11 electronic communication to or from an officer, director, 8 12 employee, or agent of the entity. 8 13 3. Require a service provider to provide subscriber 8 14 information. 8 15 Sec. 9. NEW SECTION. 808B.9 Relief. 8 16 1. An aggrieved person in a trial, hearing, or proceeding in 8 17 or before any court, department, officer, agency, regulatory 8 18 body, or other authority of this state, may move to suppress 8 19 any electronic information obtained or retained in violation of 8 20 the fourth amendment to the Constitution of the United States 8 21 or Article I, section 8, of the Constitution of the State of 8 22 Iowa, or of this chapter. 8 23 2. The attorney general may commence a civil action to 8 24 compel any government entity to comply with the provisions of 8 25 this chapter. 8 26 Sec. 10. REPEAL. Chapter 808B, Code 2016, is repealed. 8 27 EXPLANATION 8 28 The inclusion of this explanation does not constitute agreement with 8 29 the explanation's substance by the members of the general assembly. 8 30 This bill establishes the Iowa electronic communications 8 31 privacy Act and provides remedies. 8 32 ELECTRONIC INFORMATION ACCESS BY GOVERNMENT ENTITY. The 8 33 bill prohibits a government entity from compelling the 8 34 production of or access to electronic communication information 8 35 or electronic device information without a search warrant, a 9 1 court order, or a subpoena issued under the requirements in 9 2 the bill. The bill also prohibits a government entity from 9 3 accessing electronic device information by means of physical 9 4 interaction or electronic communication with the electronic 9 5 device without a search warrant, a court order, or specific 9 6 consent of the owner or other authorized possessor of the 9 7 electronic device; but allows access if the government entity, 9 8 in good faith, believes that an emergency situation exists, or 9 9 that the electronic device is lost, stolen, or abandoned under 9 10 certain circumstances. The bill includes certain definitions 9 11 including "electronic communication", "electronic communication 9 12 information", "electronic communication service", "electronic 9 13 device", and "electronic device information". 9 14 VOLUNTARY DISCLOSURE == SERVICE PROVIDER. The bill provides 9 15 that a service provider may voluntarily disclose electronic 9 16 communication information or subscriber information to a 9 17 government entity if not otherwise prohibited by state or 9 18 federal law, and generally requires the government entity 9 19 to destroy such information within 90 days unless certain 9 20 circumstances exist. 9 21 EMERGENCY. The bill requires a government entity that 9 22 obtains electronic information pursuant to an emergency 9 23 involving the risk of death or serious physical harm to a 9 24 person to file an application with the court for a warrant 9 25 or order authorizing access to the electronic information 9 26 or to file a motion with the court seeking approval of the 9 27 emergency disclosures setting forth the facts giving rise 9 28 to the emergency. If a court denies the warrant or order 9 29 authorizing access to the electronic information, the court is 9 30 required to order the immediate destruction of all electronic 9 31 information obtained and shall require the government entity to 9 32 serve immediate notice under the bill. 9 33 NOTICE. The bill requires a government entity that executes 9 34 a warrant or obtains electronic information in an emergency 9 35 situation under the bill to serve notice on the identified 10 1 subject of the warrant or emergency request that informs the 10 2 subject that information about the subject has been compelled 10 3 or requested and that states with reasonable specificity 10 4 the nature of the government investigation under which the 10 5 information is sought. The bill provides certain circumstances 10 6 under which notification of the identified subject of the 10 7 warrant or emergency request may be delayed. 10 8 SUBPOENAS. The bill does not limit the authority of a 10 9 government entity to use an administrative, grand jury, trial, 10 10 or civil discovery subpoena under certain circumstances. 10 11 RELIEF. The bill provides that an aggrieved person in 10 12 a trial, hearing, or proceeding in or before any court, 10 13 department, officer, agency, regulatory body, or other 10 14 authority of this state, may move to suppress any electronic 10 15 information obtained or retained by the government entity in 10 16 violation of either the state or federal constitution and 10 17 provides that the attorney general may commence a civil action 10 18 to compel any government entity to comply with the provisions 10 19 of the bill. 10 20 REPEAL. The bill repeals Code chapter 808B, relating to the 10 21 prohibition, restriction, or authorization of the interception 10 22 of certain electronic communications by a person and by special 10 23 state agents. LSB 5099YH (4) 86 rh/rj
