Bill Text: MI HB4007 | 2015-2016 | 98th Legislature | Introduced
Bill Title: Crimes; surveillance; wiretapping; allow in certain circumstances and prescribe procedures, penalties, and remedies. Creates new act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2015-01-20 - Printed Bill Filed 01/16/2015 [HB4007 Detail]
Download: Michigan-2015-HB4007-Introduced.html
HOUSE BILL No. 4007
January 15, 2015, Introduced by Rep. Heise and referred to the Committee on Criminal Justice.
A bill to authorize certain interceptions of communications
and the use of interception devices for certain offenses; to
provide for and regulate the application, issuance, and execution
of interception orders; to prescribe the powers and duties of
certain agencies, officers, and employees; to regulate the use and
disclosure of communications and evidence intercepted or obtained
under this act; to provide remedies and exemptions from liability;
and to prescribe penalties.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"criminal communications intercept act".
Sec. 2. As used in this act:
(a) "Aggrieved person" means a person who was a party to an
intercepted wire, oral, or electronic communication or a person
against whom the interception was directed.
(b) "Aural transfer" means a transfer containing the human
voice at any point between the point of origin and the point of
reception, including those points.
(c) "Communication common carrier" means a person engaged as a
common carrier for hire in communication by wire or radio or in
radio transmission of energy. A person engaged in radio
broadcasting is not a communication common carrier while so
engaged.
(d) "Computer trespasser" means a person who accesses a
computer without authorization and thus has no reasonable
expectation of privacy in any communication transmitted to,
through, or from the computer.
(e) "Contents" means any information concerning the substance,
purport, or meaning of a wire, oral, or electronic communication.
(f) "Electronic communication" means a 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.
Electronic communication does not include any of the following:
(i) A wire or oral communication.
(ii) A communication made through a tone-only paging device.
(iii) A communication from an electronic or mechanical device
that permits the tracking of an individual's or object's movement.
(iv) Electronic transfer information stored by a financial
institution in a communication system used for electronic storage
and transfer of funds.
(v) Stored electronic or stored wire communication governed by
18 USC 2703.
(g) "Electronic communication service" means a service that
provides to the service's users the ability to send or receive wire
or electronic communications.
(h) "Electronic communications system" means wire, radio,
electromagnetic, photooptical, or photoelectronic facilities for
transmitting wire or electronic communications and computer
facilities or related electronic equipment for the electronic
storage of wire or electronic communications.
(i) "Electronic storage" means either of the following:
(i) Temporary, intermediate storage of a wire or electronic
communication incidental to its electronic transmission.
(ii) Storage of a wire or electronic communication by an
electronic communication service for backup protection of the
communication.
(j) "Interception device" means a device, computer software,
or apparatus that can be used to intercept a wire, oral, or
electronic communication. Interception device does not include any
of the following:
(i) A telephone or telegraph instrument, equipment, or facility
or any component of that instrument, equipment, or facility that is
1 or more of the following:
(A) Furnished to the user by an electronic communication
service provider in the ordinary course of its business and being
used in the ordinary course of the user's business.
(B) Furnished by the user for connection to the facilities of
an electronic communication service provider and being used in the
ordinary course of the user's business.
(C) Being used by an electronic communication service provider
in the ordinary course of its business.
(D) Being used by an investigative or law enforcement officer
in the ordinary course of the officer's duties.
(ii) A hearing aid or similar device used to correct subnormal
hearing to not better than normal.
(k) "Intercept" or "interception" means the aural or other
acquisition of the contents of a wire, oral, or electronic
communication through the use of an interception device.
(l) "Investigative or law enforcement officer" means an officer
of this state or a political subdivision who is empowered by law to
conduct investigations of or to make arrests for offenses described
in section 9 and who is certified under standards established under
section 13.
Sec. 3. As used in this act:
(a) "Judge of competent jurisdiction" means a judge appointed
under section 4.
(b) "Oral communication" means a communication uttered by a
person with a reasonable expectation that the communication is not
subject to interception. Oral communication does not include an
electronic communication.
(c) "Pen register" means a device that 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 that provider or any device used by a provider or
customer of a wire communication service for cost accounting or
other substantially similar purposes in the ordinary course of its
business.
(d) "Person" means an employee or agent of this state or a
political subdivision or an individual, partnership, association,
limited liability company, corporation, or other legal entity.
(e) "Political subdivision" means a county, city, township, or
village of this state.
(f) "Prosecutor" means the attorney general of this state or 1
assistant attorney general he or she designates or the principal
prosecuting attorney of the county in which the facility or place
where the communication to be intercepted is located or 1 assistant
prosecuting attorney of that county he or she designates.
(g) "Readily accessible to the general public" means the
communication is not any of the following:
(i) Scrambled or encrypted.
(ii) Transmitted using modulation techniques whose essential
parameters have been withheld from the public to preserve the
communication's privacy.
(iii) Carried on a subcarrier or other signal subsidiary to a
radio transmission.
(iv) Transmitted over a communication system provided by a
communication common carrier, unless the communication is a tone-
only paging system communication.
(v) Transmitted on a frequency allocated under 47 CFR part 25
or subpart D, E, or F of 47 CFR part 74 unless, in the case of a
communication transmitted on a frequency allocated under 47 CFR
part 74 that is not exclusively allocated to broadcast auxiliary
services, the communication is a 2-way voice communication by
radio.
(h) "Trap and trace device" means a device that captures the
incoming electronic or other impulses that identify the originating
number of an instrument or device from which a wire or electronic
communication was transmitted.
(i) "User" means a person who subscribes to or uses an
electronic communication service and is authorized to engage in
that use.
(j) "Wire communication" means an aural transfer made in whole
or in part through the use of facilities for transmitting
communications by wire, cable, or other substantially similar
connection between the point of origin and the point of reception
that are furnished or operated by a person engaged in providing or
operating those facilities for the transmission of communications
and includes the use of such a connection in a switching station.
Wire communication does not include storage of that communication,
electronic or otherwise. Wire communication does not include
electronic communication.
Sec. 4. The supreme court shall appoint not less than 5
circuit court judges in each of the judicial districts designated
for the election of judges of the court of appeals as judges of
competent jurisdiction under this act.
Sec. 5. (1) Except as otherwise provided in this act or as
authorized or approved under 18 USC 2510 to 2522, a person shall
not intentionally do any of the following:
(a) Intercept, attempt to intercept, or solicit another person
to intercept or attempt to intercept a wire, oral, or electronic
communication.
(b) Disclose or attempt to disclose to another person the
contents of a 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 act.
(c) Use or attempt to use the contents of a wire, oral, or
electronic communication knowing or having reason to know the
information was obtained through the interception of a wire, oral,
or electronic communication in violation of this act.
(2) Except as provided in subsection (3), a person who
violates subsection (1) is guilty of a felony punishable by
imprisonment for not more than 4 years or a fine of not more than
$5,000.00, or both.
(3) If both of the following apply, conduct prohibited by
subsection (1) is not punishable under subsection (2) unless it is
for direct or indirect commercial advantage or private financial
gain:
(a) The conduct consists of or relates to the interception of
a satellite transmission that is not encrypted or scrambled.
(b) Either of the following applies:
(i) The satellite transmission is transmitted to a broadcasting
station for retransmission to the general public.
(ii) The satellite transmission is transmitted as an audio
subcarrier intended for redistribution to facilities open to the
public but is not a data transmission or telephone call.
(4) A person who trespasses on property owned or under the
control of another person with the intent to intercept or
facilitate intercepting a wire, oral, or electronic communication
is guilty of a misdemeanor punishable by imprisonment for not more
than 90 days or a fine of not more than $100.00, or both.
(5) This act does not prohibit any of the following:
(a) Interception, disclosure, or use of a wire or electronic
communication by a switchboard operator or an officer, employee, or
agent of an electronic communication service provider in the normal
course of his or her duties or employment while engaged in an
activity necessarily incident to rendering service or protecting
the provider's rights or property, unless the interception results
from the provider's use of service observing or random monitoring
for purposes other than mechanical or service quality control
checks, or the interception is in adherence to federal or state
laws pertaining to the monitoring and reporting of illegal
terrorist activity under federal law.
(b) Interception of a wire or electronic communication, or an
oral communication transmitted by radio, or disclosure or use of
the information obtained through the interception by an officer,
employee, or agent of the federal communications commission in the
normal course of his or her employment and the commission's
monitoring responsibilities to enforce chapter 5 of the
communications act of 1934, 47 USC 151 to 621.
(c) A person intercepting a wire, oral, or electronic
communication while acting under color of law if the person is a
party to the communication or 1 of the parties to the communication
gives prior consent to the interception.
(d) A person intercepting a wire, oral, or electronic
communication while not acting under color of law if the person is
a party to the communication or 1 of the parties to the
communication gives prior consent to the interception, unless the
communication is intercepted to commit a criminal or tortious act
in violation of the constitution or laws of the United States or
this state.
(e) Electronic surveillance as defined in 50 USC 1801,
conducted by an officer, employee, or agent of the United States in
the normal course of his or her official duty to conduct that
surveillance.
(f) Intercepting or accessing an electronic communication made
through an electronic communication system that is configured so
the electronic communication is readily accessible to the general
public.
(g) Intercepting a radio communication transmitted by any of
the following:
(i) A station if the communication is for the general public's
use or relates to a ship, aircraft, vehicle, or person in distress.
(ii) A governmental, law enforcement, civil defense, private
land mobile, fire, or public safety communications system that is
readily accessible to the general public.
(iii) A station operating on an authorized frequency within the
bands allocated to amateurs, citizens band, or general mobile radio
services.
(iv) A marine or aeronautical communications system.
(h) Engaging in conduct that is prohibited under 48 USC 553 or
605.
(i) Intercepting a wire or electronic communication whose
transmission is causing harmful interference to a lawfully
operating station or consumer electronic equipment to the extent
necessary to identify the source of the interference.
(j) Interception by other users of the same frequency of a
radio communication made through a system that utilizes frequencies
monitored by individuals engaged in providing or using the system
if the communication is not scrambled or encrypted.
(k) Using a pen register.
(l) Using a trap and trace device.
(m) An electronic communication service provider recording the
fact that a wire or electronic communication was initiated or
completed to protect the provider, another provider furnishing
service in connection with the wire or electronic communication, or
a user from fraudulent, unlawful, or abusive use of the service.
(n) It is not unlawful under this act for a person acting
under the color of law to intercept the wire or electronic
communications of a computer trespasser if all of the following
circumstances exist:
(i) The owner or operator of the computer authorizes the
interception of the computer trespasser's communications on the
computer.
(ii) The person acting under color of law is lawfully engaged
in an investigation.
(iii) The person acting under color of law has reasonable
grounds to believe that the content of the computer trespasser's
communications will be relevant to the investigation.
(iv) The interception does not acquire communications other
than those transmitted to or from the computer trespasser.
(6) A person may provide information, facilities, or technical
assistance to a person authorized by law to intercept a wire, oral,
or electronic communication if that person was provided with a
court order described in section 10 directing that assistance. The
person assisting shall not disclose the existence of any
interception, surveillance, or interception device relating to the
order described in this subsection except as otherwise required by
lawful process and then only after notifying the prosecutor who
obtained the order before disclosure.
(7) Except as otherwise provided in subsections (8) and (9), a
person providing an electronic communication service to the public
shall not intentionally disclose the contents of a communication
while it is being transmitted on that service to a person other
than the addressee or intended recipient of the communication or an
agent of the addressee or intended recipient.
(8) Subsection (7) does not apply if the service provider or
the provider's agent is the addressee or intended recipient of the
communication.
(9) A service provider described in subsection (7) may
disclose the contents of a communication as follows:
(a) If the communication was intercepted as described in
subsection (5).
(b) As authorized under this act.
(c) With the lawful consent of the originator, an addressee,
or an intended recipient of the communication.
(d) To a person employed or authorized, or whose facilities
are used, to forward the communication to its destination.
(e) To a law enforcement agency, if the service provider
obtains the contents inadvertently and believes they pertain to the
commission of a crime.
Sec. 6. (1) Except as provided in subsection (2) or (3) or as
authorized or approved under 18 USC 2510 to 2522, a person shall
not do any of the following:
(a) Manufacture, assemble, possess, or sell or otherwise
deliver an interception device knowing or having reason to know the
device's design renders it primarily useful for surreptitiously
intercepting wire, oral, or electronic communications.
(b) Advertise or offer to sell or otherwise deliver an
interception device knowing or having reason to know the device's
design renders it primarily useful for surreptitiously intercepting
wire, oral, or electronic communications.
(c) Advertise or offer to sell or otherwise deliver any device
by promoting the use of the device to surreptitiously intercept
wire, oral, or electronic communications.
(2) In the normal course of its business, an electronic
communication service provider or an officer, agent, or employee of
or a person under contract with that service provider may
manufacture, assemble, possess, or sell an interception device
knowing or having reason to know the device's design renders it
primarily useful for surreptitiously intercepting wire, oral, or
electronic communications.
(3) Under a warrant or order issued by a court of competent
jurisdiction or a comparable court of the United States, an
officer, agent, or employee of the United States, this state, or a
political subdivision may manufacture, assemble, possess, or sell
an interception device knowing or having reason to know the
device's design renders it primarily useful for surreptitiously
intercepting wire, oral, or electronic communications.
(4) A person who violates subsection (1) is guilty of a felony
punishable by imprisonment for not more than 4 years or a fine of
not more than $5,000.00, or both.
Sec. 7. If a wire, oral, or electronic communication is
intercepted, its contents and any evidence derived from the
communication shall not be received in evidence in a trial,
hearing, or other proceeding before a court, grand jury, tribunal,
department or regulatory agency, legislative committee, or other
authority of this state or a political subdivision if disclosure of
the communication or evidence would violate this act unless
otherwise authorized by federal law or the law of this state.
Sec. 8. (1) An investigative or law enforcement officer who
knows the contents of a wire, oral, or electronic communication or
evidence derived from the communication may do any of the following
if he or she obtained that knowledge by a means authorized under
this act:
(a) Disclose the contents or evidence to another investigative
or law enforcement officer or to an officer, agent, or official of
a law enforcement agency of the United States government to the
extent appropriate for proper performance of the official duties of
the person making or receiving the disclosure.
(b) Use those contents or the evidence to the extent
appropriate for proper performance of his or her official duties.
(2) A person who receives information concerning a wire, oral,
or electronic communication intercepted in accordance with this act
or evidence derived from the communication may disclose the
contents or evidence while giving testimony under oath or
affirmation in a proceeding held under the authority of the United
States, this state, or a political subdivision or in a civil
proceeding under section 15 if the person received the information
by a means authorized under this act.
(3) A privileged wire, oral, or electronic communication
intercepted in accordance with or in violation of this act does not
lose its privileged character by that interception.
(4) Except as otherwise provided in this subsection, if an
investigative or law enforcement officer intercepting wire, oral,
or electronic communications in the manner authorized by this act
intercepts a wire, oral, or electronic communication relating to an
offense other than an offense specified in the order under section
9, the communication's contents and evidence derived from the
communication may be disclosed or used as provided in subsection
(1) or (2). The communication's contents and any evidence derived
from the communication may be used under subsection (3) if
authorized or approved by a judge of competent jurisdiction on
subsequent application after determining that the contents were
otherwise intercepted in accordance with this act. The subsequent
application shall be made as soon as practicable after intercepting
the communication. This subsection does not authorize the
disclosure or use in any manner of the contents of or evidence
derived from a wire, oral, or electronic communication relating to
an offense punishable by imprisonment for 4 years or less or
punishable only by a fine.
(5) A person who violates this section is guilty of a felony
punishable by imprisonment for not more than 4 years or a fine of
not more than $5,000.00, or both.
Sec. 9. (1) A prosecutor may authorize an application to a
judge of competent jurisdiction for an order authorizing or
approving the interception of wire, oral, or electronic
communications by the investigative or law enforcement officer
responsible for the investigation of the offense for which the
application is made if the interception may provide or has provided
evidence of any of the following offenses:
(a) Gang-related activity in violation of section 411u or 411v
of the Michigan penal code, 1931 PA 328, MCL 750.411u and 750.411v.
(b) Human trafficking in violation of chapter LXVIIA of the
Michigan penal code, 1931 PA 328, MCL 750.462a to 750.462h.
(c) Attempting or conspiring to commit an offense described in
subdivision (a) or (b).
(2) The principal prosecuting attorney for a county or his or
her designated assistant prosecuting attorney shall not authorize
an application for a violation unless the attorney general or his
or her designated assistant attorney general approves the
authorization. The attorney general or his or her designated
assistant attorney general shall approve or deny the authorization
within 7 days after the request for authorization is made.
(3) Unless the investigative or law enforcement officer
described in subsection (1) is employed by the department of state
police, the prosecutor authorizing the application shall notify the
director of the department of state police, or a person the
director designates, of the application and the information
described in section 10(1)(b)(ii) and (iv). If the proposed
interception will overlap, conflict with, hamper, or interfere with
another interception proposed or authorized, the director or his or
her designee shall advise the judge of competent jurisdiction for
each application and shall coordinate any subsequent interceptions.
Sec. 10. (1) An application for an order authorizing or
approving the interception of a wire, oral, or electronic
communication shall be in writing upon oath or affirmation to a
judge of competent jurisdiction and shall state the applicant's
authority to apply. An application shall include all of the
following information:
(a) The identity of the investigative or law enforcement
officer applying and the prosecutor authorizing the application.
(b) A comprehensive statement of the facts and circumstances
the applicant relies upon to justify his or her belief that an
order should be issued, including all of the following:
(i) Details of the particular offense that has been, is being,
or is about to be committed.
(ii) Except as provided in section 11, 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 communication
sought to be intercepted.
(iv) If known, the identity of any person committing or about
to commit the offense and whose communication is to be intercepted.
(v) A statement of the facts indicating the specific instances
of conduct demonstrating probable cause to believe the particular
offense has been, is being, or is about to be committed.
(c) Comprehensive statements of each of the following:
(i) Whether other investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried
or to be dangerous.
(ii) The time period for which the interception must be
maintained. If the investigation's nature is such that the
authorization for interception should not automatically terminate
when the described type of communication has been obtained, the
statement shall include a particular description of the facts
establishing probable cause to believe additional communications of
the same type will occur after that time.
(iii) The legitimate investigative objective to be expected by
the interception.
(iv) The facts concerning all previous applications known to
the individuals authorizing and making the application that were
made for authorization to intercept or for approval of an
interception of a wire, oral, or electronic communication involving
any of the same persons, facilities, or places specified in the
application and the action taken by the judge on each previous
application.
(d) If the application is for extension of an order, a
statement setting forth the results obtained from the interception
or a reasonable explanation of the failure to obtain any results.
(e) Unless the applying investigative or law enforcement
officer is employed by the department of state police, a statement
that the director of the department of state police or an
individual the director designates has been notified of the
application and the information described in subdivision (b)(ii) and
(iv).
(f) A statement of the estimated cost of the manpower and
other resources used in the interception for the period of time the
interception is authorized.
(2) The judge of competent jurisdiction may require the
applicant to furnish additional testimony or documentary evidence
to support the application.
(3) Based upon an application under subsection (1), the judge
of competent jurisdiction may enter an ex parte order, as requested
or as modified, authorizing or approving interception of a wire,
oral, or electronic communication if the judge determines all of
the following on the basis of the facts submitted by the applicant:
(a) Probable cause exists to believe an individual is
committing, has committed, or is about to commit a particular
offense described in section 9.
(b) Except as provided in section 11, probable cause exists to
believe the facilities from which, or the place where, the wire,
oral, or electronic communication is to be intercepted are being
used, or are about to be used, in connection with the offense or
are leased to, listed in the name of, or commonly used by a person
described in subsection (1)(b)(iv).
(c) Probable cause exists to believe particular communications
concerning that offense will be obtained through the interception.
(d) Usual investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be dangerous.
(4) Each order authorizing or approving interception of a
wire, oral, or electronic communication shall specify all of the
following:
(a) If known, the identity of the person whose communication
is to be intercepted.
(b) The nature and location of the communication facilities as
to which, or the place where, authority to intercept is granted.
(c) A particular description of the type of communication
sought to be intercepted and a statement of the particular offense
to which it relates.
(d) The legitimate investigative objective for which
authorization to intercept is granted.
(e) The agency authorized to intercept the communication and
the person authorizing the application.
(f) The time period during which interception is authorized or
approved, including a statement as to whether interception shall
automatically terminate when the described communication has been
obtained.
(5) If the application states that specific information,
facilities, or technical assistance is needed from a particular
person to accomplish the interception unobtrusively and with
minimum interference with the services that person is according a
person whose communications are to be intercepted, the order
authorizing the interception shall direct the particular person to
immediately furnish the information, facilities, or technical
assistance specified in the order to the applicant. The order shall
specify the time period during which the person is required to
provide information, facilities, or technical assistance. The
agency conducting the interception shall compensate the person
furnishing facilities or technical assistance for reasonable
expenses incurred in providing the facilities or assistance. A
person is not civilly liable for providing information, facilities,
or assistance under this subsection.
(6) An order entered under this section shall not authorize or
approve the interception of a wire, oral, or electronic
communication for longer than the time necessary to achieve the
authorized investigative objective or 30 days, whichever is
earlier. The period begins on the day an investigative or law
enforcement officer first begins to conduct an interception under
the order or 10 days after the order is entered, whichever is
earlier. The judge may grant extensions of an order only upon
application for an extension and in accordance with subsections (1)
and (3). The extension period shall not be longer than the judge
determines is necessary to achieve the purposes for which the order
was granted or 30 days, whichever is earlier. The judge may grant
no more than 2 extensions of an order. After the second extension
of an order terminates, an investigative or law enforcement officer
may apply for and be granted an order authorizing the interception
of a wire, oral, or electronic communication based on the
information contained in the application for the terminated order
only if the new application includes new evidence, in addition to
that described in the previous application, justifying the
officer's belief that an order should be issued.
(7) Each order and extension shall provide that the
authorization to intercept be executed as soon as practicable, be
conducted so as to minimize the interception of communications not
otherwise subject to interception under this act, and terminate
when the authorized objective is obtained or, in any event, after
not more than 30 days.
(8) An order authorizing interception under this act shall
require reports to the judge who issued the order showing the
progress made toward achieving the authorized objective and any
need for continued interception. The reports shall be made weekly
or at shorter intervals as the judge requires.
(9) The contents of a wire, oral, or electronic communication
intercepted as authorized by this act shall be recorded on tape or
by a comparable recording device. Recording under this subsection
shall be done in a way that protects the recording from editing or
other alterations. When an order or extension expires, all
recordings shall immediately be made available to the judge issuing
the order and sealed under his or her directions. Custody of the
recordings shall be where the judge orders. The recordings shall
not be destroyed except upon order of the judge or his or her
successor, but, except as otherwise provided in this subsection,
shall be retained for not less than 10 years. However, if evidence
is not obtained from the interception within 1 year, a party
intercepted may move for destruction of the recordings. Duplicate
recordings may be made for use or disclosure of contents or
evidence under section 8(1) for investigations. The presence of the
seal or a satisfactory explanation for its absence is a
prerequisite for use or disclosure of contents or evidence under
section 8(2).
(10) The judge shall seal applications made and orders granted
under this act. Custody of the applications and orders shall be
where the judge directs. The applications and orders shall be
disclosed only upon a showing of good cause before a judge of
competent jurisdiction. The applications and orders shall not be
destroyed except on order of the judge or his or her successor, but
shall be retained for not less than 10 years.
(11) Within a reasonable time, but not later than 90 days
after an order or extension terminates, the judge shall cause an
inventory to be served on the persons named in the order and on
other parties to intercepted communications as the judge determines
is in the interest of justice. Upon showing good cause, a judge may
delay the service of the inventory required under this subsection
for 1 or more periods. Each period shall not be greater than 30
days. The inventory shall include notice of all of the following:
(a) Entry of the order.
(b) The date the order was entered and the period of
authorized or approved interception.
(c) The fact that during the period wire, oral, or electronic
communications were or were not intercepted.
(12) If a person given an inventory under subsection (11)
files a motion and serves a copy of the motion on the law
enforcement agency described in subsection (11) and other parties
as required by law, the judge shall make available to the person or
his or her attorney for inspection the portions of the intercepted
communications to which the person was a party and the portions of
the applications and orders pertaining to communications to which
the person was a party.
(13) The contents of a wire, oral, or electronic communication
intercepted under this act or evidence derived from the
communication shall not be received in evidence or otherwise
disclosed in a trial, hearing, preliminary examination, or other
proceeding in a court unless each party has been furnished with a
copy of the application and order authorizing or approving the
interception before the preliminary examination or not less than 21
days before the trial, hearing, or other proceeding. In the
interest of justice, the judge may adjourn the trial, hearing, or
other proceeding to allow the defendant not less than 21 days to
review that evidence.
(14) An aggrieved person in a trial, hearing, preliminary
examination, or other proceeding before a court, grand jury,
tribunal, department or regulatory agency, legislative committee,
or other authority of this state or a political subdivision may
move to suppress the contents of a wire, oral, or electronic
communication intercepted under this act or evidence derived from
the communication on 1 or more of the following grounds:
(a) The communication was unlawfully intercepted.
(b) The order of authorization or approval under which the
communication was intercepted is insufficient on its face.
(c) The interception was not in conformity with the order of
authorization or approval.
(15) A motion to suppress under subsection (14) shall be made
before the trial, hearing, preliminary examination, or other
proceeding unless there is no opportunity to make the motion before
the trial, hearing, preliminary examination, or other proceeding or
the aggrieved person making the motion is not aware of the grounds
of the motion before the trial, hearing, preliminary examination,
or other proceeding. If the aggrieved person files a motion, the
judge may make available to the aggrieved person or his or her
attorney for inspection any portion of the intercepted
communication or evidence derived from the intercepted
communication that the judge determines is in the interests of
justice. If the judge grants the motion to suppress under
subsection (14), the intercepted wire, oral, or electronic
communication or evidence derived from the communication shall be
treated as having been obtained in violation of this act.
(16) The prosecutor may appeal an order granting a motion to
suppress under subsection (14) or the denial of an application for
an order of approval if the prosecutor certifies to the judge or
other official granting the motion or denying the application that
the appeal is not taken for delay. The prosecutor shall take the
appeal within 30 days after the order granting the motion to
suppress is entered or the application is denied and shall
prosecute it diligently.
(17) A violation of subsection (9) or (10) may be punished as
contempt of the court that approved or denied the application for
interception.
(18) An order authorizing interception under this act shall
also authorize the entry of the premises covered under the order
for the sole purpose of installing, maintaining, or removing an
interception device. The judge who issued the order shall be
notified within 48 hours of the time and method of each entry
allowed by this subsection.
Sec. 11. (1) The requirements of section 10(1)(b)(ii) and
(3)(b) relating to the specification of the facilities from which,
or the place where, the communication is to be intercepted do not
apply if any of the following circumstances exist:
(a) In the case of an application with respect to the
interception of an oral communication, all of the following
circumstances exist:
(i) The application is by a state or local law enforcement
officer and is approved by the attorney general, designated
assistant attorney general, or principal prosecuting attorney or
designated assistant prosecuting attorney.
(ii) The application contains a full and complete statement as
to why the specification is not practical and identifies the person
committing the offense and whose communications are to be
intercepted.
(iii) The judge finds that the specification is not practical.
(b) In the case of an application with respect to a wire or
electronic communication, all of the following circumstances exist:
(i) The application is by a state or local law enforcement
officer and is approved by the attorney general, designated
assistant attorney general, or principal prosecuting attorney or
designated assistant prosecuting attorney.
(ii) The application identifies the person believed to be
committing the offense and whose communications are to be
intercepted and the applicant makes a showing that there is
probable cause to believe that the person's actions could have the
effect of thwarting interception from a specified facility.
(iii) The judge finds that the showing has been adequately made.
(iv) The order authorizing or approving the interception is
limited to interception only for the time that is reasonable to
presume that the person identified in the application is or was
reasonably proximate to the instrument through which the
communication will be or was transmitted.
(2) An interception of a communication under an order with
respect to which the requirements of section 10(1)(b)(ii) and (3)(b)
do not apply under subsection (1)(a) shall not begin until the
place where the communication is to be intercepted is ascertained
by the person implementing the interception order. A provider of
wire or electronic communications service that has received an
order as provided for in subsection (1)(b) may move the court to
modify or quash the order on the ground that its assistance with
respect to the interception cannot be performed in a timely or
reasonable fashion. The court, upon notice to the government, shall
decide the motion expeditiously.
Sec. 12. (1) Within 30 days after an order or extension
entered under section 10 expires or the judge denies an order
authorizing or approving interception of a wire, oral, or
electronic communication, the judge shall report all of the
following information to the administrative office of the United
States courts and to the department of state police:
(a) The fact that an order or extension was applied for.
(b) The kind of order or extension applied for.
(c) Whether the order or extension was granted as applied for,
modified, or denied.
(d) The interception time period authorized and the number and
duration of any extensions of the order.
(e) Any offense specified in the application, order or
extension.
(f) The identity of the investigative or law enforcement
officer and agency applying and the prosecutor authorizing the
application.
(g) The nature of the facilities from which, or the place
where, communications were to be intercepted.
(2) In January of each year, the attorney general shall report
to the administrative office of the United States courts all of the
following:
(a) The information required by subsection (1) with respect to
each application for an order or extension authorizing or approving
an interception of a wire, oral, or electronic communication made
during the preceding calendar year.
(b) A general description of the interceptions made under each
order or extension described in subdivision (a), including all of
the following:
(i) The approximate nature and frequency of incriminating
communications intercepted.
(ii) The approximate nature and frequency of other
communications intercepted.
(iii) The approximate number of persons whose communications
were intercepted.
(iv) The approximate nature, amount, and cost of the manpower
and other resources used in the interceptions.
(c) The number of arrests resulting from the interceptions
described in subdivision (b) and the offenses for which arrests
were made.
(d) The number of trials resulting from the interceptions
described in subdivision (b).
(e) The number of motions to suppress made with respect to the
interceptions described in subdivision (b) and the number granted
or denied.
(f) The number of convictions resulting from the interceptions
described in subdivision (b), the offenses for which the
convictions were obtained, and a general assessment of the
importance of the interceptions.
(g) The information required by subdivisions (b) to (f) with
respect to orders or extensions for interception of wire, oral, or
electronic communications obtained in a preceding calendar year.
(3) On or before January 10 of each year, the department of
state police shall report to the attorney general, senate, house of
representatives, and governor all of the information regarding
applications, orders, and interceptions of wire, oral, or
electronic communications required under subsection (2).
Sec. 13. The attorney general and the director of the
department of state police shall establish a course of training in
the legal and technical aspects of intercepting wire, oral, or
electronic communications, regulations he or she finds necessary or
appropriate for the training program, and minimum standards for the
certification and periodic recertification of investigative or law
enforcement officers eligible to intercept wire, oral, or
electronic communications under this act. The director of the
department of state police shall charge each officer who enrolls in
this training program a reasonable enrollment fee to offset the
costs of training.
Sec. 14. An officer, employee, or agent of an electronic
communication service provider who learns of the existence of an
interception device in the course of his or her employment or
otherwise shall report the device's existence to the department of
state police. The department of state police shall determine
whether placement of the device is authorized by court order. If
placement of the device is not authorized by court order, the
department of state police shall immediately inform the person
whose wire, oral, or electronic communication was intercepted or
intended to be intercepted of the device's existence. This section
does not diminish or excuse any obligation of the department of
state police, the officer, employee, or agent of the electronic
communication service provider, or any other person to remove the
device or to take any other actions required by law, regulation, or
policy.
Sec. 15. (1) Except as provided in section 10(5), a person
whose wire, oral, or electronic communication is intercepted,
disclosed, or used in violation of this act has a civil cause of
action against any person who intercepts, discloses, uses, or
procures another person to intercept, disclose, or use the
communication or its contents. In the civil cause of action, the
person is entitled to recover all of the following:
(a) Actual damages, but not less than $1,000.00 a day for each
day of a violation.
(b) Exemplary damages.
(c) Reasonable attorney fees and other litigation costs
reasonably incurred.
(2) A good-faith reliance on a court order or a legislative
authorization is a defense to a civil or criminal action brought
under this act or any other law.
Sec. 16. Purchases of an interception device shall be recorded
as a separate line item on any state or local appropriation bill.
Sec. 17. This act does not prohibit any of the following:
(a) An interception otherwise permitted by law for a peace
officer of this state or of the federal government, or the
officer's agent, while in the performance of the officer's duties.
(b) Hearing a communication transmitted by common carrier
facilities by an employee of a communications common carrier when
acting in the course of his or her employment.
(c) The recording by a public utility of telephone
communications to it requesting service or registering a complaint
by a customer, if a record of the communications is required for
legitimate business purposes and the agents, servants, and
employees of the public utility are aware of the practice by an
employee safeguarding property owned by, or in custody of, his or
her employer on his or her employer's property.
(d) The routine monitoring, including recording, by employees
of the department of corrections of telephone communications on
telephones available for use by prisoners in state correctional
facilities, if the monitoring is conducted in the manner prescribed
by section 70 of the corrections code of 1953, 1953 PA 232, MCL
791.270, and rules promulgated under that section.
Sec. 18. Any court of criminal jurisdiction may enter an order
authorizing the use of a pen register or a trap and trace device as
provided in 18 USC 3121.
Sec. 19. The director of the department of state police or a
person designated by the director shall maintain custody of all
interception devices to be used by state law enforcement officers
during the periods in which those devices are not being used for
interception purposes under a court order. The sheriff for a county
or a person designated by the sheriff shall maintain custody of all
interception devices to be used by local law enforcement officers
in that county during periods in which those devices are not being
used for interception purposes under a court order. The director of
state police and the sheriff for a county or their designees shall
maintain a custody log of interception devices that are in their
custody under this section. The log shall keep a record of the
following information:
(a) Each person who has been granted access to the
interception device.
(b) The inclusive dates of access.
(c) The purpose of the access.
(d) If access is pursuant to a court order, the name of the
judge who issued the order.
