Bill Text: TX HB3914 | 2019-2020 | 86th Legislature | Introduced
Bill Title: Relating to warrants and orders issued for the use of tracking equipment and access to electronic communications to further a criminal investigation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2019-03-21 - Referred to Criminal Jurisprudence [HB3914 Detail]
Download: Texas-2019-HB3914-Introduced.html
86R12560 JCG-F | ||
By: Sherman, Sr. | H.B. No. 3914 |
|
||
|
||
relating to warrants and orders issued for the use of tracking | ||
equipment and access to electronic communications to further a | ||
criminal investigation. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 18.02(a), Code of Criminal Procedure, is | ||
amended to read as follows: | ||
(a) A search warrant may be issued to search for and seize: | ||
(1) property acquired by theft or in any other manner | ||
which makes its acquisition a penal offense; | ||
(2) property specially designed, made, or adapted for | ||
or commonly used in the commission of an offense; | ||
(3) arms and munitions kept or prepared for the | ||
purposes of insurrection or riot; | ||
(4) weapons prohibited by the Penal Code; | ||
(5) gambling devices or equipment, altered gambling | ||
equipment, or gambling paraphernalia; | ||
(6) obscene materials kept or prepared for commercial | ||
distribution or exhibition, subject to the additional rules set | ||
forth by law; | ||
(7) a drug, controlled substance, immediate | ||
precursor, chemical precursor, or other controlled substance | ||
property, including an apparatus or paraphernalia kept, prepared, | ||
or manufactured in violation of the laws of this state; | ||
(8) any property the possession of which is prohibited | ||
by law; | ||
(9) implements or instruments used in the commission | ||
of a crime; | ||
(10) property or items, except the personal writings | ||
by the accused, constituting evidence of an offense or constituting | ||
evidence tending to show that a particular person committed an | ||
offense; | ||
(11) persons; | ||
(12) contraband subject to forfeiture under Chapter 59 | ||
[ |
||
(13) electronic customer data held in electronic | ||
storage, including: | ||
(A) the contents of and records and other | ||
information related to a wire communication or electronic | ||
communication held in electronic storage; and | ||
(B) location information; or | ||
(14) a cellular telephone or other wireless | ||
communications device, subject to Article 18.0215. | ||
SECTION 2. Article 18.02(b)(2), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(2) "Electronic customer data," [ |
||
"electronic storage," and "location information" [ |
||
the meanings assigned by Article 18B.001. | ||
SECTION 3. Article 18B.001, Code of Criminal Procedure, is | ||
amended by amending Subdivisions (1), (4), and (7) and adding | ||
Subdivision (9-a) to read as follows: | ||
(1) "Authorized peace officer" means: | ||
(A) a sheriff or deputy sheriff; | ||
(B) a constable or deputy constable; | ||
(C) a marshal or police officer of a | ||
municipality; | ||
(D) a ranger or officer commissioned by the | ||
Public Safety Commission or the director of the department; | ||
(E) an investigator of a prosecutor's office; | ||
(F) a law enforcement agent of the Texas | ||
Alcoholic Beverage Commission; | ||
(G) a law enforcement officer commissioned by the | ||
Parks and Wildlife Commission; | ||
(H) an enforcement officer appointed by the | ||
inspector general of the Texas Department of Criminal Justice under | ||
Section 493.019, Government Code; | ||
(I) an investigator commissioned by the attorney | ||
general under Section 402.009, Government Code; [ |
||
(J) a member of an arson investigating unit | ||
commissioned by a municipality, a county, or the state; | ||
(K) a criminal investigator of the United States | ||
as described by Article 2.122(a); or | ||
(L) a peace officer appointed by a federal agency | ||
listed in Article 2.122(a) as a criminal investigator of the | ||
agency. | ||
(4) "Designated law enforcement office or agency" | ||
means: | ||
(A) the sheriff's department of a county with a | ||
population of 3.3 million or more; | ||
(B) a police department in a municipality with a | ||
population of 500,000 or more; [ |
||
(C) the office of inspector general of the Texas | ||
Department of Criminal Justice; | ||
(D) the office of a prosecutor; or | ||
(E) a federal agency described by Article | ||
2.122(a) that has employed: | ||
(i) a criminal investigator; or | ||
(ii) a peace officer described by | ||
Subdivision (1)(L). | ||
(7) Except as otherwise provided by this chapter, | ||
"electronic [ |
||
that: | ||
(A) are in the possession, care, custody, or | ||
control of a provider of an electronic communications service or | ||
provider of a remote computing service; and | ||
(B) contain: | ||
(i) information revealing the identity of | ||
customers of the applicable service; | ||
(ii) information about a customer's use of | ||
the applicable service; | ||
(iii) information that identifies the | ||
recipient or destination of a wire or electronic communication sent | ||
to or by a customer; | ||
(iv) the content of a wire or electronic | ||
communication sent to or by a customer; [ |
||
(v) any data stored with the applicable | ||
service provider by or on behalf of a customer; and | ||
(vi) location information. | ||
(9-a) "Location information" means information that | ||
reveals the location of a wireless communications device obtained | ||
by any of the following methods: | ||
(A) using GPS location-based measurements, | ||
including the querying of the target device's GPS service and the | ||
returned coordinates; | ||
(B) comparing a record of the target device's IP | ||
address to a list of known IP addresses and approximate known | ||
locations; | ||
(C) querying the target device's operating | ||
system for the identity of nearby cellular towers and uploading the | ||
information to a server where the cellular tower identification may | ||
be compared to a list of known cellular tower locations; | ||
(D) querying the target device's operating | ||
system for the identifier (such as SSID or (B)SSID) associated with | ||
a nearby Wi-Fi access point and uploading that information to a | ||
server where the access point's identifier may be compared to a | ||
database or list of known identifiers of Wi-Fi access points in | ||
known locations; | ||
(E) using records derived from the device's | ||
connections to radio antennas through which a provider of an | ||
electronic communications service or provider of a remote computing | ||
service provides wireless service to that device; | ||
(F) using enhanced 9-1-1 location-based | ||
measurements; and | ||
(G) any combination of methods described in this | ||
subdivision or another similar method used to determine the | ||
location of a wireless communications device. | ||
SECTION 4. Articles 18B.051(a), (c), and (d), Code of | ||
Criminal Procedure, are amended to read as follows: | ||
(a) A prosecutor with jurisdiction in a county within a | ||
judicial district described by Article 18B.052 may file with a | ||
district judge in the judicial district an application for the | ||
installation and use of a pen register, ESN reader, trap and trace | ||
device, or similar equipment or the use of similar equipment that | ||
does not require installation [ |
||
|
||
(c) A prosecutor must make an application personally and may | ||
not make the application through an assistant or other person | ||
acting on the prosecutor's behalf if the prosecutor: | ||
(1) files an application on the prosecutor's own | ||
motion; or | ||
(2) files an application for the use or installation | ||
and use, as applicable, of a pen register, ESN reader, or similar | ||
equipment on the request of an authorized peace officer not | ||
commissioned by the department, other than an authorized peace | ||
officer employed by a designated law enforcement office or agency. | ||
(d) A prosecutor may make an application through an | ||
assistant or other person acting on the prosecutor's behalf if the | ||
prosecutor files an application for the use or installation and | ||
use, as applicable, of: | ||
(1) a pen register, ESN reader, or similar equipment | ||
on the request of: | ||
(A) an authorized peace officer who is | ||
commissioned by the department; or | ||
(B) an authorized peace officer of a designated | ||
law enforcement office or agency; or | ||
(2) a trap and trace device or similar equipment on the | ||
request of an authorized peace officer, regardless of whether the | ||
peace officer is commissioned by the department. | ||
SECTION 5. Article 18B.053, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18B.053. APPLICATION REQUIREMENTS. An application | ||
under this subchapter must: | ||
(1) be made in writing under oath; | ||
(2) include the name of the subscriber and the | ||
telephone number and location of the communication device on which | ||
the pen register, ESN reader, trap and trace device, or similar | ||
equipment will be used, to the extent that information is known or | ||
is reasonably ascertainable; [ |
||
(3) state that the use or installation and use, as | ||
applicable, of the device or equipment will likely produce | ||
information that is material to an ongoing criminal investigation; | ||
and | ||
(4) state articulable facts sufficient to support a | ||
finding of probable cause to believe that the use or installation | ||
and use, as applicable, of the device or equipment will: | ||
(A) produce evidence of an offense in the | ||
criminal investigation; or | ||
(B) result in the apprehension of a fugitive from | ||
justice. | ||
SECTION 6. Article 18B.101(a), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(a) On presentation of an application under Subchapter B, a | ||
judge may order the use or installation and use, as applicable, of a | ||
pen register, ESN reader, or similar equipment by an authorized | ||
peace officer commissioned by the department or an authorized peace | ||
officer of a designated law enforcement office or agency. | ||
SECTION 7. Article 18B.104(a), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(a) An order for the use or installation and use of a device | ||
or equipment under this subchapter is valid for a period not to | ||
exceed 60 days after the earlier of the date the device or equipment | ||
is installed or used or the 10th day after the date the order is | ||
entered, unless the prosecutor applies for and obtains an extension | ||
of the order from the court before the order expires. | ||
SECTION 8. Article 18B.105, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER. A | ||
district court shall seal an application and order granted under | ||
this chapter. The court may not unseal the application and order | ||
until after the order has expired. | ||
SECTION 9. Article 18B.151(b), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(b) An authorized peace officer employed by a designated law | ||
enforcement agency [ |
||
|
||
use or install and use, as applicable, a pen register, [ |
||
trace device, ESN reader, or other similar device if the peace | ||
officer has probable cause to believe [ |
||
(1) an immediate life-threatening situation exists | ||
that: | ||
(A) is within the territorial jurisdiction of the | ||
peace officer or another authorized peace officer the peace officer | ||
is assisting; and | ||
(B) requires the use or installation and use of a | ||
pen register, [ |
||
similar device before an order authorizing the installation and use | ||
can, with due diligence, be obtained under this chapter; and | ||
(2) there are sufficient grounds under this chapter on | ||
which to obtain an order authorizing the use or installation and use | ||
of a pen register, [ |
||
similar device. | ||
SECTION 10. Article 18B.152, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION OR | ||
[ |
||
[ |
||
under Article 18B.151 shall: | ||
(1) promptly report the installation or use of the | ||
device to the prosecutor or an assistant of the prosecutor in the | ||
county in which the device is installed or used; and | ||
(2) within 48 hours after the installation of the | ||
device is complete or the use of the device begins, whichever occurs | ||
first, obtain an order under Subchapter C authorizing the use or | ||
installation and use of the device. | ||
(b) A judge may issue an order authorizing the use or | ||
installation and use of a device under this subchapter during the | ||
48-hour period prescribed by Subsection (a)(2). If an order is | ||
denied or is not issued within the 48-hour period, the peace officer | ||
shall terminate use of, and if necessary remove, the [ |
||
|
||
the expiration of 48 hours. | ||
SECTION 11. Article 18B.153, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED. The | ||
state may not use as evidence in a criminal proceeding any | ||
information gained through [ |
||
and trace device, ESN reader, or other similar device installed or | ||
used under this subchapter if an authorized peace officer: | ||
(1) does not apply for authorization for the [ |
||
|
||
(2) applies for but does not obtain that | ||
authorization. | ||
SECTION 12. Article 18B.202(c), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(c) The affidavit must: | ||
(1) state the name, department, agency, and address of | ||
the applicant; | ||
(2) identify the vehicle, container, or item to which, | ||
in which, or on which the mobile tracking device is to be attached, | ||
placed, or otherwise installed; | ||
(3) state the name of the owner or possessor of the | ||
vehicle, container, or item identified under Subdivision (2); | ||
(4) state the judicial jurisdictional area in which | ||
the vehicle, container, or item identified under Subdivision (2) is | ||
expected to be found; and | ||
(5) state the facts and circumstances that provide the | ||
applicant with probable cause [ |
||
(A) criminal activity has been, is, or will be | ||
committed; and | ||
(B) the installation and use of a mobile tracking | ||
device is likely to produce information that is material to an | ||
ongoing criminal investigation of that criminal activity. | ||
SECTION 13. Article 18B.253, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18B.253. LIMITATION: PEN REGISTERS AND SIMILAR | ||
DEVICES. To prevent inclusion of the contents of a wire or | ||
electronic communication, a governmental agency authorized to use | ||
or install and use a pen register, trap and trace device, ESN | ||
reader, or similar device under this chapter or other law must, as | ||
applicable: | ||
(1) use reasonably available technology to only record | ||
and decode electronic or other impulses used to identify the | ||
numbers dialed, routed, addressed, or otherwise processed or | ||
transmitted by the communication; or | ||
(2) otherwise configure the device such that the | ||
device does not collect the content of a wire or electronic | ||
communication, and if necessary, immediately delete the content of | ||
a wire or electronic communication incidentally collected in using | ||
the device. | ||
SECTION 14. Chapter 18B, Code of Criminal Procedure, is | ||
amended by adding Subchapter G-1 to read as follows: | ||
SUBCHAPTER G-1. CERTAIN ELECTRONIC CUSTOMER DATA | ||
Art. 18B.321. DEFINITION. In this subchapter, "electronic | ||
customer data" means data or records, other than the content of a | ||
wire or electronic communication, that: | ||
(1) are in the possession, care, custody, or control | ||
of a provider of an electronic communications service or provider | ||
of a remote computing service; and | ||
(2) contain: | ||
(A) information revealing the identity of | ||
customers of the applicable service; | ||
(B) information about a customer's use of the | ||
applicable service; | ||
(C) information that identifies the recipient or | ||
destination of a wire or electronic communication sent to or by a | ||
customer; and | ||
(D) location information. | ||
Art. 18B.322. PROSPECTIVE SURVEILLANCE; APPLICABILITY OF | ||
OTHER PROVISIONS. (a) With respect to location information, this | ||
subchapter applies only to a warrant described by Article 18B.323 | ||
for the required disclosure of location information that is created | ||
after the issuance of the warrant. | ||
(b) Article 18B.104 applies to the duration of a warrant | ||
issued under this subchapter in the same manner as that article | ||
applies to an order issued under Subchapter C. | ||
(c) Articles 18B.355, 18B.356, and 18B.357 apply to a | ||
warrant required under this subchapter to obtain electronic | ||
customer data. | ||
Art. 18B.323. REQUIREMENTS REGARDING REQUEST FOR AND FILING | ||
OF APPLICATION. (a) To require a provider of an electronic | ||
communications service or a provider of a remote computing service | ||
to disclose electronic customer data held in electronic storage, | ||
only a prosecutor with jurisdiction in a county within a judicial | ||
district described by Article 18B.052(3) or (4) may file with a | ||
district judge in the judicial district an application for a | ||
warrant under this subchapter. | ||
(b) A prosecutor may file an application under this | ||
subchapter or under federal law on: | ||
(1) the prosecutor's own motion; or | ||
(2) the request of an authorized peace officer, | ||
regardless of whether the peace officer is commissioned by the | ||
department. | ||
(c) A prosecutor must make an application under this | ||
subchapter personally and may not make the application through an | ||
assistant or other person acting on the prosecutor's behalf if the | ||
prosecutor: | ||
(1) files an application on the prosecutor's own | ||
motion; or | ||
(2) files an application on the request of an | ||
authorized peace officer not commissioned by the department, other | ||
than an authorized peace officer employed by a designated law | ||
enforcement office or agency. | ||
(d) A prosecutor may make an application under this | ||
subchapter through an assistant or other person acting on the | ||
prosecutor's behalf if the prosecutor files the application on the | ||
request of: | ||
(1) an authorized peace officer who is commissioned by | ||
the department; or | ||
(2) an authorized peace officer of a designated law | ||
enforcement office or agency. | ||
Art. 18B.324. APPLICATION AND ISSUANCE OF WARRANT. (a) On | ||
the filing of an application under this subchapter, a district | ||
judge may issue a search warrant under this article for electronic | ||
customer data held in electronic storage by a provider of an | ||
electronic communications service or a provider of a remote | ||
computing service described by Article 18B.355(b), regardless of | ||
whether the customer data is held at a location in this state or | ||
another state. An application made under this subsection must | ||
demonstrate probable cause for the issuance of the warrant and must | ||
be supported by the oath of the applicant. | ||
(b) A search warrant may not be issued under this article | ||
unless the sworn affidavit required by Article 18.01(b) provides | ||
sufficient and substantial facts to establish probable cause that: | ||
(1) the disclosure of the electronic customer data | ||
sought will: | ||
(A) produce evidence of an offense under | ||
investigation; or | ||
(B) result in the apprehension of a fugitive from | ||
justice; and | ||
(2) the electronic customer data sought is held in | ||
electronic storage by the service provider on which the warrant is | ||
served under Article 18B.355(c). | ||
(c) Only the electronic customer data described in the sworn | ||
affidavit required by Article 18.01(b) may be seized under the | ||
warrant. | ||
(d) A warrant issued under this article shall run in the | ||
name of "The State of Texas." | ||
(e) A district court shall seal an affidavit and warrant | ||
granted under this subchapter and may not unseal the affidavit and | ||
warrant until after the order expires. | ||
SECTION 15. Article 18B.352(a), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(a) A court shall issue an order authorizing disclosure of | ||
contents, records, or other information, other than location | ||
information, of a wire or electronic communication held in | ||
electronic storage if the court determines that there is a | ||
reasonable belief based on specific articulable facts that: | ||
(1) the information sought is relevant to a legitimate | ||
law enforcement inquiry; and | ||
(2) the information: | ||
(A) reveals the identity of customers of the | ||
applicable service; or | ||
(B) is about a customer's use of the applicable | ||
service. | ||
SECTION 16. Articles 18B.355(b) and (c), Code of Criminal | ||
Procedure, are amended to read as follows: | ||
(b) An order issued under Article 18B.352 or a [ |
||
issued under Article 18B.354 may be served only on a provider of an | ||
electronic communications service or a provider of a remote | ||
computing service that is a domestic entity or a company or entity | ||
otherwise doing business in this state under a contract or a terms | ||
of service agreement with a resident of this state, if any part of | ||
that contract or agreement is to be performed in this state. | ||
(c) An order issued under Article 18B.352 or a [ |
||
warrant issued under Article 18B.354 is served when an authorized | ||
peace officer delivers the warrant by hand, by facsimile or other | ||
electronic transmission, or, in a manner allowing proof of | ||
delivery, by means of the United States mail or a private delivery | ||
service to: | ||
(1) a person specified by Section 5.255, Business | ||
Organizations Code; | ||
(2) the secretary of state in the case of a company or | ||
entity to which Section 5.251, Business Organizations Code, | ||
applies; or | ||
(3) any other person or entity designated to receive | ||
the service of process. | ||
SECTION 17. Article 18B.501(a), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(a) An authorized peace officer seeking electronic customer | ||
data under Article 18B.351 or other customer information under this | ||
chapter may apply to the court for an order commanding the service | ||
provider to whom a warrant, subpoena, or court order is directed not | ||
to disclose to any person the existence of the warrant, subpoena, or | ||
court order. The order is effective for the period the court | ||
considers appropriate. | ||
SECTION 18. The changes in law made by this Act by amending | ||
Article 18.02 and Chapter 18B, Code of Criminal Procedure, apply | ||
only to a warrant or other court order issued on or after the | ||
effective date of this Act. A warrant or order issued before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the warrant or order was issued, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 19. This Act takes effect January 1, 2020. |