STATE OF OKLAHOMA

1st Session of the 54th Legislature (2013)

HOUSE BILL 1309	By:	Hoskin

AS INTRODUCED

An Act relating to common carriers; creating the Geolocation Information Protection Act; providing definitions; making certain acts unlawful; providing penalties; stating acts that are deemed permissible; prohibiting acceptance of geolocation information into evidence under certain circumstances; authorizing interception of geolocation information under specified circumstances; providing procedures for interception order; authorizing persons to seek civil relief for violations; providing defense to civil or criminal actions; stating time limitation for filing suit; providing for codification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178 of Title 13, unless there is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the “Geolocation Information Protection Act”.
SECTION 2.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.1 of Title 13, unless there is created a duplication in numbering, reads as follows:
As used in the Geolocation Information Protection Act:
1.  “Covered services” means electronic communication service, remote computing service, or a geolocation information service;
2.  “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce, but does not include:
a.	any wire or oral communication,
b.	any communication made through a tone-only paging device,
c.	any communication from a tracking device, or
d.	electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
3.  “Electronic communication service” means any service which provides to users of such service the ability to send or receive wire or electronic communications;
4.  “Electronic surveillance” means:
a.	the acquisition by any electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a certain person who is in this state, if the contents are acquired by intentionally targeting that person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes,
b.	the acquisition by any electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in this state, without the consent of any party thereto, if such acquisition occurs in this state, but does not include the acquisition of those communications of computer trespassers that are otherwise authorized by law,
c.	the intentional acquisition by any electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within this state, or
d.	the installation or use of any electronic, mechanical, or other surveillance device in this state for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
5.  “Geolocation information” means, with respect to a person, any information that is not the content of a communication, concerning the location of a wireless communication device or tracking device that, in whole or in part, is generated by or derived from the operation of that device and that could be used to determine or infer information regarding the location of the person;
6.  “Geolocation information service” means the provision of a global positioning service or other mapping, locational, or directional information service to the public, or to such class of users as to be effectively available to the public, by or through the operation of any wireless communication device, including any mobile telephone, global positioning system receiving device, mobile computer, or other similar or successor device;
7.  “Intercept” means the acquisition of geolocation information through the use of any electronic, mechanical, or other device;
8.  “Investigative or law enforcement officer” means any officer of the United States or of this state or a political subdivision thereof who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in this act;
9.  “Person” means any employee or agent of the United States, or of this state or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation;
10.  “Remote computing service” means the provision to the public of computer storage or processing services by means of an electronic communications system;
11.  “Tracking device” means any electronic or mechanical device which permits the tracking of the movement of a person or object;
12.  “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce; and
13.  “Wireless communication device” means any device that enables access to, or use of, any electronic communication system or service, remote computing service, or geolocation information service, if that device utilizes a radio or other wireless connection to access such system or service.
SECTION 3.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.2 of Title 13, unless there is created a duplication in numbering, reads as follows:
Except as otherwise provided in this act, it shall be unlawful for any person to:
1.  Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept geolocation information pertaining to another person;
2.  Intentionally disclose, or endeavor to disclose, to any other person geolocation information pertaining to another person knowing or having reason to know that the information was obtained through the interception of such information in violation of this act;
3.  Intentionally use, or endeavor to use, any geolocation information knowing or having reason to know that the information was obtained through the interception of such information in violation of this act; or
4.  Intentionally disclose, or endeavor to disclose, to any other person the geolocation information pertaining to another person intercepted by means authorized by this act knowing or having reason to know that the information was obtained through the interception of such information in connection with a criminal investigation and with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.
Any person who violates any of the provisions of this section shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term of not more than five (5) years, or a fine not to exceed Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.
SECTION 4.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.3 of Title 13, unless there is created a duplication in numbering, reads as follows:
A.  It shall not be unlawful pursuant to the Geolocation Information Protection Act:
1.  For an officer, employee, or agent of a provider of covered services, whose facilities are used in the transmission of geolocation information, to intercept, disclose, or use that information in the normal course of employment of the officer, employee, or agent while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the provider of that service, except that a provider of a geolocation information service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;
2.  For a person to intercept geolocation information pertaining to another person if such other person has given prior consent to such interception unless such information is intercepted for the purpose of committing any criminal or tortious act in violation of the laws of this state or of the United States;
3.  For a parent or legal guardian of a child, under eighteen (18) years of age, to intercept geolocation information pertaining to that child or to give consent for another person to intercept such information;
4.  For any person to intercept or access geolocation information relating to another person through any system that is configured so that such information is readily accessible to the general public;
5.  For any investigative or law enforcement officer or other emergency responder to intercept or access geolocation information relating to a person if such information is used:
a.	to respond to a request made by such person for assistance, or
b.	in circumstances in which it is reasonable to believe that the life or safety of a person is threatened, to assist such threatened person; or
6.  For a person to intercept geolocation information pertaining to the location of another person who has unlawfully taken the device if the owner or operator of such device authorizes the interception of the geolocation information and such person is lawfully engaged in an investigation.
B.  The provisions of the Geolocation Information Protection Act shall not apply to any person obtaining information pursuant to a warrant.
C.  Any person providing covered services may divulge geolocation information of another person:
1.  With the lawful consent of such other person;
2.  To another person employed or authorized, or whose facilities are used, to forward such geolocation information to its destination; or
3.  When the geolocation information is inadvertently obtained by a service provider and appears to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.
SECTION 5.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.4 of Title 13, unless there is created a duplication in numbering, reads as follows:
Whenever any geolocation information has been acquired, no part of such information and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of this state or a political subdivision of this state if the disclosure of that information would be in violation of the Geolocation Information Protection Act.
SECTION 6.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.5 of Title 13, unless there is created a duplication in numbering, reads as follows:
A.  Notwithstanding any other provision of this act, any investigative or law enforcement officer, specially designated by the Attorney General or a district attorney, may intercept geolocation information if such officer reasonably determines that an emergency situation exists that involves:
1.  Immediate danger of death or serious physical injury to any person;
2.  Conspiratorial activities threatening national or state security interest; or
3.  Conspiratorial activities characteristic of organized crime,
and requires geolocation information be intercepted before an order authorizing such interception can, with due diligence, be obtained.
B.  An application for an order approving such interception shall be made within forty-eight (48) hours after the interception has occurred or begins to occur.  In the absence of an order, an interception of geolocation information carried out under subsection A of this section shall immediately terminate when the information sought is obtained or when the application for the order is denied, whichever is earlier.  In the event such application for approval is denied, the geolocation information shall not be admissible in any civil or criminal proceeding.
SECTION 7.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 178.6 of Title 13, unless there is created a duplication in numbering, reads as follows:
A.  Any person whose geolocation information is intercepted, disclosed, or intentionally used in violation of this act is authorized to, in a civil action, recover from the person who engaged in that violation such relief as may be appropriate.
B.  In an action under this section, appropriate relief includes:
1.  Such preliminary and other equitable or declaratory relief as may be appropriate;
2.  Damages, including punitive damages in appropriate cases; and
3.  Reasonable attorney fees and costs.
C.  It is a complete defense against any civil or criminal action brought against any person for conduct in violation of this act if such person acted in a good-faith reliance on:
1.  A warrant or order issued by a court, a grand jury subpoena, or statutory authorization;
2.  A request of an investigative or law enforcement officer; or
3.  A good-faith determination that an exception pursuant to Section 4 of this act permitted the conduct complained of.
D.  A civil action brought under this section shall not be commenced later than one (1) year after the date upon which the claimant first has a reasonable opportunity to discover the violation.
SECTION 8.  This act shall become effective November 1, 2013.

54-1-5190	GRS	12/03/12