Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                           H.B. 158
Approved for Filing: J. Rogers 6                             1st Sub. (Buff)
          6 01-20-23 5:10 PM 6
                   Representative Andrew Stoddard proposes the following substitute bill:
            ELECTRONIC INFORMATION OR DATA PRIVACY ACT
                                        MODIFICATIONS
                                     2023 GENERAL SESSION
                                          STATE OF UTAH
                              Chief Sponsor: Andrew Stoddard
                                Senate Sponsor: ____________
 7
 LONG TITLE
 General Description:
        This bill amends provisions concerning electronic information or data privacy.
 Highlighted Provisions:
        This bill:
        < provides that law enforcement may obtain a specific category of electronic
 information or data with a subpoena under certain conditions;
        < amends notification provisions after a search warrant has been executed; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a coordination clause.                                        1st Sub. H.B. 158
 Utah Code Sections Affected:
 AMENDS:
        77-23c-102, as last amended by Laws of Utah 2022, Chapter 274
        77-23c-103, as last amended by Laws of Utah 2021, Chapter 42
 Utah Code Sections Affected by Coordination Clause:
     *HB0158S01*
       1st Sub. (Buff) H.B. 158                                                    01-20-23 5:10 PM
        77-23c-102, as last amended by Laws of Utah 2022, Chapter 274
27
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 77-23c-102 is amended to read:
        77-23c-102. Electronic information or data privacy -- Warrant required for
 disclosure.
        (1) (a) Except as provided in Subsection (2), for a criminal investigation or
 prosecution, a law enforcement agency may not obtain, without a search warrant issued by a
 court upon probable cause:
        (i) the location information, stored data, or transmitted data of an electronic device; or
        (ii) electronic information or data transmitted by the owner of the electronic
 information or data:
        (A) to a provider of a remote computing service; or
        (B) through a provider of an electronic communication service.
        (b) Except as provided in Subsection (1)(c), a law enforcement agency may not use,
 copy, or disclose, for any purpose, the location information, stored data, or transmitted data of
 an electronic device, or electronic information or data provided by a provider of a remote
 computing service or an electronic communication service, that:
        (i) is not the subject of the warrant; and
        (ii) is collected as part of an effort to obtain the location information, stored data, or
 transmitted data of an electronic device, or electronic information or data provided by a
 provider of a remote computing service or an electronic communication service that is the
 subject of the warrant in Subsection (1)(a).
        (c) A law enforcement agency may use, copy, or disclose the transmitted data of an
 electronic device used to communicate with the electronic device that is the subject of the
 warrant if the law enforcement agency reasonably believes that the transmitted data is
 necessary to achieve the objective of the warrant.
        (d) The electronic information or data described in Subsection (1)(b) shall be destroyed
 in an unrecoverable manner by the law enforcement agency as soon as reasonably possible after
 the electronic information or data is collected.
        (2) (a) A law enforcement agency may obtain location information without a warrant
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       01-20-23 5:10 PM                                                     1st Sub. (Buff) H.B. 158
 for an electronic device:
           (i) in accordance with Section 53-10-104.5;
           (ii) if the device is reported stolen by the owner;
           (iii) with the informed, affirmative consent of the owner or user of the electronic
 device;
           (iv) in accordance with a judicially recognized exception to warrant requirements;
           (v) if the owner has voluntarily and publicly disclosed the location information; or
           (vi) from a provider of a remote computing service or an electronic communications
 service if the provider voluntarily discloses the location information:
           (A) under a belief that an emergency exists involving an imminent risk to an individual
 of death, serious physical injury, sexual abuse, live-streamed sexual exploitation, kidnapping,
 or human trafficking; or
           (B) that is inadvertently discovered by the provider and appears to pertain to the
 commission of a felony, or of a misdemeanor involving physical violence, sexual abuse, or
 dishonesty.
           (b) A law enforcement agency may obtain stored data or transmitted data from an
 electronic device or electronic information or data transmitted by the owner of the electronic
 information or data to a provider of a remote computing service or through a provider of an
 electronic communication service, without a warrant:
           (i) with the informed consent of the owner of the electronic device or electronic
 information or data;
           (ii) with a subpoena under Section 77-22-2 if the stored or transmitted data or the
 electronic information or data is an audio or video surveillance recording;
           [(ii)] (iii) in accordance with a judicially recognized exception to warrant requirements;
 or
           [(iii)] (iv) subject to Subsection (2)(a)(vi)(B), from a provider of a remote computing
 service or an electronic communication service if the provider voluntarily discloses the stored
 or transmitted data as otherwise permitted under 18 U.S.C. Sec. 2702.
           (c) A prosecutor may obtain a judicial order as described in Section 77-22-2.5 for the
 purposes described in Section 77-22-2.5.
           (3) A provider of an electronic communication service or a remote computing service,
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        1st Sub. (Buff) H.B. 158                                                    01-20-23 5:10 PM
 the provider's officers, employees, or agents, or other specified persons may not be held liable
 for providing information, facilities, or assistance in good faith reliance on the terms of the
 warrant issued under this section or without a warrant in accordance with Subsection (2).
        (4) Nothing in this chapter:
        (a) limits or affects the disclosure of public records under Title 63G, Chapter 2,
 Government Records Access and Management Act;
        (b) affects the rights of an employer under Subsection 34-48-202(1)(e) or an
 administrative rule adopted under Section 63A-16-205; or
        (c) limits the ability of a law enforcement agency to receive or use information, without
 a warrant or subpoena, from the National Center for Missing and Exploited Children under 18
 U.S.C. Sec. 2258A.
        Section 2. Section 77-23c-103 is amended to read:
        77-23c-103. Notification required -- Delayed notification.
        (1) (a) Except as provided in Subsection (2), if a law enforcement agency executes a
 warrant in accordance with Subsection 77-23c-102(1) or 77-23c-104(3), the law enforcement
 agency shall notify the owner of the electronic device or electronic information or data
 specified in the warrant within 90 days after the day on which the electronic device or the
 electronic data or information is obtained by the law enforcement agency but in no case shall
 the law enforcement agency notify the owner more than three days after the day on which the
 investigation is concluded.
        (b) The notification described in Subsection (1)(a) shall state:
        (i) that a warrant was applied for and granted;
        (ii) the kind of warrant issued;
        (iii) the period of time during which the collection of the electronic information or data
 was authorized;
        (iv) the offense specified in the application for the warrant;
        (v) the identity of the law enforcement agency that filed the application; and
        (vi) the identity of the judge who issued the warrant.
        (c) For the notification requirement described in Subsection (1)(a), the time period
 under Subsection (1)(a) begins on the day after the day on which the owner of the electronic
 device or electronic information or data specified in the warrant is known, or could be
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        01-20-23 5:10 PM                                                    1st Sub. (Buff) H.B. 158
 reasonably identified, by the law enforcement agency.
         (2) A law enforcement agency seeking a warrant in accordance with Subsection
 77-23c-102(1)(a) or 77-23c-104(3) may submit a request, and the court may grant permission,
 to delay the notification required by Subsection (1) for a period not to exceed [30] 90 days, if
 the court determines that there is reasonable cause to believe that the notification may:
         (a) endanger the life or physical safety of an individual;
         (b) cause a person to flee from prosecution;
         (c) lead to the destruction of or tampering with evidence;
         (d) intimidate a potential witness; or
         (e) otherwise seriously jeopardize an investigation or unduly delay a trial.
         (3) When a delay of notification is granted under Subsection (2) and upon application
 by the law enforcement agency, the court may grant additional extensions of up to [30] 90 days
 each.
         (4) (a) A law enforcement agency that seeks a warrant for an electronic device or
 electronic information or data in accordance with Subsection 77-23c-102(1)(a) or
 77-23c-104(3) may submit a request to the court to delay a notification under Subsection (2) if
 the purpose of delaying the notification is to apprehend an individual:
         (i) who is a fugitive from justice under Section 77-30-13; and
         (ii) for whom an arrest warrant has been issued for a violent felony offense as defined
 in Section 76-3-203.5.
         (b) The court may grant the request under Subsection (4)(a) to delay notification until
 the individual who is a fugitive from justice under Section 77-30-13 is apprehended by the law
 enforcement agency.
         (c) A law enforcement agency shall issue a notification described in Subsection (5) to
 the owner of the electronic device or electronic information or data within 14 days after the day
 on which the law enforcement agency apprehends the individual described in Subsection (4)(a).
         (5) Upon expiration of the period of delayed notification granted under Subsection (2)
 or (3), or upon the apprehension of an individual described in Subsection (4)(a), the law
 enforcement agency shall serve upon or deliver by first-class mail, or by other means if
 delivery is impracticable, to the owner of the electronic device or electronic information or data
 a copy of the warrant together with notice that:
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        1st Sub. (Buff) H.B. 158                                                   01-20-23 5:10 PM
        (a) states with reasonable specificity the nature of the law enforcement inquiry; and
        (b) contains:
        (i) the information described in Subsection (1)(b);
        (ii) a statement that notification of the search was delayed;
        (iii) the name of the court that authorized the delay of notification; and
        (iv) a reference to the provision of this chapter that allowed the delay of notification.
        (6) A law enforcement agency is not required to notify the owner of the electronic
 device or electronic information or data if the owner is located outside of the United States.
        Section 3. Coordinating H.B. 158 with H.B. 57 -- Technical amendment.
        If this H.B. 158 and H.B. 57, Law Enforcement Investigation Amendments, both pass
 and become law, it is the intent of the Legislature that the Office of Legislative Research and
 General Counsel prepare the Utah Code database for publication by amending Subsection
 77-23c-102(2)(b)(ii) in this H.B. 158 to read:
        "(ii) with a subpoena under Section 77-22-2 if the stored or transmitted data or the
 electronic information is an audio or video surveillance recording;".
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Statutes affected: 
Introduced: 
H.B. 158 1st Substitute (Not Adopted) Text: 