PA 16-148—sHB 5640

Judiciary Committee

AN ACT CONCERNING COMPELLED DISCLOSURE OF CELLULAR TELEPHONE AND INTERNET RECORDS AND FRAUD COMMITTED THROUGH TELEPHONE SOLICITATION

SUMMARY: Under existing law, telecommunications carriers must disclose call-identifying information, and electronic communication or remote computing service providers must disclose basic subscriber information, to law enforcement officials based on ex parte court orders (i. e. , orders issued without a hearing or prior notice to the customer), under specified conditions.

This act allows law enforcement officials to also seek ex parte orders to compel these carriers or service providers to disclose a communication's contents or geo-location data (see below) associated with call-identifying information. It sets a higher standard for the issuance of these orders (probable cause) than the existing standard for orders to compel disclosure of call-identifying or basic subscriber information (reasonable and articulable suspicion).

The act allows a carrier or service provider, upon the request of law enforcement officials, to disclose up to 48 hours of geo-location data without a court order, if there are exigent circumstances (i. e. , an emergency involving danger of serious physical injury or death to someone).

Among other things, the act also (1) limits any such court order from authorizing disclosure of more than 14 days' worth of information and (2) requires law enforcement officials to disclose the information to defense counsel.

In addition, the act creates a specific crime of telephone fraud. The act classifies six degrees of this crime, generally based on the amount of money or value of the property the violator obtained illegally.

EFFECTIVE DATE: October 1, 2016

1 — DISCLOSURE OF CUSTOMER OR SUBSCRIBER INFORMATION

Geo-Location Data Defined ( 1(a))

The act defines “geo-location data” as information on an electronic device's location (both real-time and historical) that, in whole or part, is generated by, derived from, or obtained by operating such a device, including a cell phone surveillance device. The act excludes geo-location data from the existing definition of call-identifying information.

Standard to Grant Ex Parte Court Order ( 1(b))

Under prior law, a judge had to grant an ex parte court order if a law enforcement official (e. g. , a prosecutor or police officer) requested it to compel disclosure of an individual's call-identifying information or basic subscriber information, and the official stated (1) a reasonable and articulable suspicion that a crime had been, or was being, committed or that exigent circumstances existed and (2) that the customer information was relevant and material to an ongoing criminal investigation.

The act requires the law enforcement official to swear under oath that the standard is met. The act continues to allow disclosure of this information based on a reasonable and articulable suspicion of a crime and the information's relevance and materiality to an investigation, but it does not allow such disclosure on the basis of exigent circumstances absent a crime. It specifies that an order issued under this standard cannot authorize disclosure of a communication's contents or geo-location data.

For an order to compel disclosure of a communication's contents or geo-location data associated with call-identifying information, the act requires the official to swear under oath that (1) there is probable cause to believe that a crime has been or is being committed and (2) the content of the communications or the geo-location data is relevant and material to an ongoing criminal investigation.

In either case, the act prohibits the order from authorizing the disclosure of more than 14 days of data.

Direct Application to Company for 48 Hours of Geo-Location Data ( 1(c))

As an alternative to a court order, the act allows law enforcement officials to request up to 48 hours of geo-location data for a subscriber or customer from a telecommunications carrier or electronic communication or remote computing service provider. The carrier or provider may comply if the applicant states under oath:

1. that facts exist to support the belief that the requested data is relevant and material to an ongoing criminal investigation,

2. a belief that exigent circumstances exist, and

3. the facts supporting the belief that these circumstances exist.

The act allows a law enforcement official to apply to a given carrier or provider only once in the same investigation. An official who seeks disclosure of additional geo-location data must apply for a court order as described above.

As is the case under existing law for data provided by court order, carriers and service providers must be paid the reasonable expenses they incur to comply with the request ( 1(f)).

Immunity ( 1(g))

Under existing law, carriers and service providers who provide information pursuant to such a court order are subject to the same immunity available under specified federal law. The act extends this protection to carriers or service providers who provide geo-location data pursuant to a direct request from law enforcement without a court order.

Under prior law, this immunity applied if the company provided the information in good faith. The act removes the specific reference to good faith. Federal law (1) prohibits a cause of action against service providers for cooperating with specified court orders or law enforcement requests in an emergency for certain electronic surveillance devices and (2) provides that a good faith reliance on such a court order or request or a legislative or statutory authorization is a complete defense against any civil or criminal action (18 U. S. C. 3124).

Data Retention and Disclosure to Defense Counsel ( 1(h))

Under the act, law enforcement officials who receive this information, whether through a court order or direct application to the company, (1) may retain it for more than 14 days only if it relates to an ongoing criminal investigation and (2) must disclose it to defense counsel.

Notice after Court Order ( 1(e))

By law, after the court issues an order described above, the law enforcement official who requested it must mail a notice within 48 hours to the person whose records were sought, unless the official requests a 90-day delay for certain reasons (e. g. , notification would endanger someone's safety or otherwise seriously jeopardize the investigation). The court may approve delays beyond 90 days.

The act requires the official to file a copy of the order notice with the court clerk. If the official who requested the order receives information in response to it, he or she must file with the clerk a return within 10 days, including an inventory of the information received. The official also must provide any such information to defense counsel.

The act specifies that if the judge finds that there is a significant likelihood that notification would seriously jeopardize the investigation and issues an order authorizing delayed notification, the carrier or service provider must not notify anyone of the order's existence, other than the applicant and the company's legal counsel.

Reporting ( 1(i))

Existing law requires each law enforcement official to report to the chief state's attorney by January 15 annually on disclosure orders issued the previous year, such as the number of orders, type of information sought, and status of any resulting criminal prosecution. The chief state's attorney must compile the data in the individual reports and provide it in a report to the Judiciary Committee by January 31 of each year.

Under the act, this report must also include information on applications the law enforcement officials made directly to carriers or service providers for geo-location data as described above.

2-7 — TELEPHONE FRAUD

The act creates a specific crime of telephone fraud. The crime applies to someone who:

1. knowingly or intentionally devises or participates in a scheme to defraud someone of money or property;

2. obtains such money or property by false pretenses, false promises, or extortion; and

3. uses a telephone call to obtain the money or property from the victim, including a standard call, automated call, or recorded message.

The table below shows the different degrees of this crime and the penalty classification.

Under existing law, obtaining property by false pretenses, false promise, or extortion also constitutes larceny (CGS 53a-119). The act's monetary thresholds for the classification of telephone fraud, and corresponding penalties, are the same as those that generally apply under existing larceny law (CGS 53a-122 to -125b).

Table 1: Classification of Telephone Fraud Under the Act

Degree of Crime

Value of Money or Property Obtained Illegally

Classification of Crime (see Table on Penalties)

1st degree

greater than $20,000, or any amount if the crime involved extortion

Class B felony

2nd degree

greater than $10,000

Class C felony

3rd degree

greater than $2,000

Class D felony

4th degree

greater than $1,000

Class A misdemeanor

5th degree

greater than $500

Class B misdemeanor

6th degree

$500 or less

Class C misdemeanor

BACKGROUND

Related Federal Law

The federal Stored Communications Act sets conditions governing when electronic communication or remote computing services may or must disclose wire and electronic communications and transactional records (18 U. S. C. 2701 et seq. ). For example, these providers may voluntarily disclose a communication's contents in limited situations, such as disclosures to government entities if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury requires such disclosure (18 U. S. C. 2702(b)).

OLR Tracking: JO; RP; PF; cmg