1 HB17
2 214571-5
3 By Representatives Reynolds, Whitt, Stringer, Robertson and
4 Simpson
5 RFD: Judiciary
6 First Read: 11-JAN-22
7 PFD: 09/01/2021
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1
2 ENROLLED, An Act,
3 Relating to wiretapping; to add a new Chapter 2A to
4 Title 20, Code of Alabama 1975; to authorize the Attorney
5 General to submit an application to a circuit court judge to
6 intercept any wire or electronic communication under certain
7 circumstances; to specify the procedures for obtaining an
8 intercept order, the information that must be included in an
9 intercept order, the limitations of an intercept order, and
10 the means by which the communication is to be intercepted; to
11 provide for the extension of intercept orders under certain
12 conditions; to prohibit the destruction of recorded
13 communications for a specified time frame; to allow an
14 investigative officer to submit a written request to the
15 Attorney General, through the Secretary of the Alabama State
16 Law Enforcement Agency, requesting the Attorney General apply
17 for an intercept order; to specify under what conditions
18 recorded communications may be disclosed; to provide for civil
19 and criminal penalties for violations; to provide penalties
20 for unauthorized disclosures; and in connection therewith
21 would have as its purpose or effect the requirement of a new
22 or increased expenditure of local funds within the meaning of
23 Amendment 621 of the Constitution of Alabama of 1901, as
24 amended by Amendment 890, now appearing as Section 111.05 of
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1 the Official Recompilation of the Constitution of Alabama of 1901.
2 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
3 Section 1. This act shall be known and may be cited
4 as the Agent Billy Clardy III Act.
5 Section 2. Chapter 2A, commencing with Sections
6 20-2A-1, is added to Title 20, Code of Alabama 1975, to read
7 as follows:
8 20-2A-1.
9 For the purposes of this chapter, the following
10 terms shall have the following meanings:
11 (1) AGENCY. Alabama State Law Enforcement Agency.
12 (2) AGGRIEVED INDIVIDUAL. An individual who was a
13 party to an intercepted wire or electronic communication or an
14 individual against whom the interception was directed.
15 (3) ATTORNEY GENERAL. The Attorney General of the
16 State of Alabama or his or her designee.
17 (4) COMMUNICATION COMMON CARRIER. The term as
18 defined in 47 U.S.C. 153(11) or a provider of communication
19 services.
20 (5) COMMUNICATIONS SERVICE PROVIDER. A provider of
21 communication service as defined in Section 37-2A-2.
22 (5) (6) CONTENTS. When used with respect to a wire
23 or electronic communication, any information concerning the
24 identity of the parties to the communication or the existence,
25 substance, purport, or meaning of that communication.
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1 (6) (7) ELECTRONIC COMMUNICATION. Any transfer of an
2 electronic or other signal, including any fax signal, computer
3 generated signal, other similar signal, or scrambled or
4 encrypted signal transferred via wire, radio, electromagnetic,
5 photoelectric, or photo optical system from one party to
6 another in which the involved parties may reasonably expect
7 the communication to be private.
8 (7) (8) ELECTRONIC, MECHANICAL, OR OTHER DEVICE. A
9 device or apparatus primarily designed or used for the
10 nonconsensual interception of wire or electronic
11 communications.
12 (8) (9) INTERCEPT. The aural or other acquisition of
13 the contents of a wire or electronic communication through the
14 use of an electronic, mechanical, or other device.
15 (9) (10) INVESTIGATIVE OFFICER. A special agent of
16 the agency, a special agent of the Attorney General's office,
17 or any other law enforcement officer of this state designated
18 by the secretary of the agency who meets guidelines
19 established by the secretary and who has successfully
20 completed a training course approved by the Attorney General
21 on the legal and technical aspects of the interception and use
22 of wire or electronic communications.
23 (10) (11) JUDGE OF COMPETENT JURISDICTION. A circuit
24 court judge in the county where the intercept is expected to
25 take place or a circuit court judge designated by the Chief
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1 Justice of the Supreme Court or by the Alabama Supreme Court
2 to hear intercept applications or where the interception takes
3 place.
4 (11) (12) PROSECUTOR. A district attorney or his or
5 her designee.
6 (12) (13) SECRETARY. The Secretary of the Alabama
7 State Law Enforcement Agency or his or her designee.
8 (13) (14) WIRE COMMUNICATION. A communication made
9 in whole or in part through the use of facilities for the
10 transmission of communications by the aid of wire, cable, or
11 other like connection between the point of origin and the
12 point of reception furnished or operated by an individual
13 engaged as a communication common carrier or communications
14 service provider in providing or operating the facilities for
15 the transmission of communications.
16 20-2A-2.
17 (a) No individual or other agency, other than the
18 Alabama State Law Enforcement Agency, may own or possess an
19 electronic, mechanical, or other device.
20 (b) Only investigative officers may install,
21 operate, or monitor an electronic, mechanical, or other
22 device.
23 (c) Any law enforcement officer of this state may
24 assist in the operation and monitoring of an interception of a
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1 wire or electronic communication as long as an investigative
2 officer is present at all times.
3 (d) The agency shall perform audits on the
4 electronic, mechanical, or other devices.
5 (e) The secretary may approve the use of an
6 electronic, mechanical, or other device that is being used by
7 a federal agency, as long as the approval is made in writing
8 and attached to the original affidavit.
9 20-2A-3.
10 Orders authorizing, approving, or extending the
11 interception of wire or electronic communications may be
12 granted, subject to this chapter, when the intercept may
13 provide or has provided evidence an individual is committing,
14 has committed, or is about to commit a felony drug offense
15 included in Article 5, commencing with Section 13A-12-201, of
16 Chapter 12, of Title 13A.
17 20-2A-4.
18 (a)(1) An investigative officer may submit a written
19 request to the secretary requesting the secretary apply for an
20 intercept order. If the secretary approves the request, the
21 secretary may submit a written request to the Attorney General
22 requesting the Attorney General apply for an intercept order
23 to a judge of competent jurisdiction. The written request
24 shall be on a form approved by the Attorney General and shall
25 include an affidavit.
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1 (2) The affidavit shall include all of the
2 following:
3 a. The identity of the investigating officer making
4 the application.
5 b. A statement of the facts and circumstances relied
6 upon by the applicant to justify the belief that an order
7 should be issued, including all of the following:
8 1. Details of the specific offense that has been
9 committed, is being committed, or will be committed.
10 2. A particular description of the nature and
11 location of the communications facilities from which, or the
12 place where, the communication is to be intercepted.
13 3. A particular description of the type of
14 communication sought to be intercepted.
15 4. The identity of the individual, if known, whose
16 communications are to be intercepted.
17 c. A statement that other investigative procedures
18 have been attempted and failed, reasonably appear to be
19 unlikely to succeed if attempted, or are too dangerous to be
20 attempted.
21 d. A statement of the period of time the intercept
22 is required to be maintained, including a statement of whether
23 the intercept will automatically terminate when the described
24 communication is first obtained. If the authorization for the
25 intercept does not automatically terminate when the described
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1 type of communication is obtained, facts that establish
2 probable cause to believe additional communications of the
3 same type will occur.
4 e. A statement of the facts concerning all previous
5 applications known to the applicant, made to any judge for
6 approval of an intercept involving the same individual,
7 facilities, or places specified in the application and the
8 action taken by the judge, if known.
9 f. If the application is for the extension of an
10 order, a statement explaining the results obtained from the
11 intercept or a reasonable explanation of the failure to obtain
12 required results.
13 (b)(1) The Attorney General shall review the request
14 and decide whether it is appropriate to submit an application
15 to a judge of competent jurisdiction for an intercept order.
16 (2) If the Attorney General decides to submit an
17 application, he or she shall notify the secretary or the
18 investigative officer.
19 (3) If the Attorney General declines to submit an
20 application, he or she shall send the secretary or the
21 investigative officer a notice of declination within 10 days.
22 20-2A-5.
23 (a) Upon receiving an application from the Attorney
24 General for an intercept order, a judge of competent
25 jurisdiction may enter an ex parte intercept order as
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1 requested or as modified, authorizing an intercept within the
2 territorial jurisdiction of the court if the judge determines
3 all of the following:
4 (1) There is probable cause to believe that an
5 individual is committing, has committed, or is about to commit
6 a felony drug offense included in Article 5, commencing with
7 Section 13A-12-201, of Chapter 12, of Title 13A.
8 (2) There is probable cause to believe that specific
9 communications concerning that offense will be obtained
10 through the intercept.
11 (3) Normal investigative procedures have been
12 attempted and have failed, reasonably appear to be unlikely to
13 succeed if attempted, or are too dangerous to be attempted.
14 (4) There is probable cause to believe that the
15 facilities from which, or the place where, the wire or
16 electronic communications are to be intercepted are being
17 used, or are about to be used, in connection with the
18 commission of the offense, or are being leased to, listed in
19 the name of, or commonly used by the individual described in
20 the application.
21 (b) Each intercept order authorizing or approving
22 the interception of a wire or electronic communication shall
23 specify all of the following:
24 (1) The identity of the individual, if known, whose
25 communications are to be intercepted.
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1 (2) The nature and location of the communications
2 facilities which, or the place where, authority to intercept
3 is granted, and the means by which the intercept may be made.
4 (3) A description of the type of communication
5 sought to be intercepted and a statement of the particular
6 offense to which it relates.
7 (4) The identity of the agency authorized to
8 intercept the communications and the individual requesting the
9 application.
10 (5) The period of time the intercept is authorized,
11 including a statement of whether the intercept automatically
12 terminates when the described communication is first obtained.
13 (c) The intercept order authorizing the intercept,
14 upon request of the applicant, shall direct that a
15 communication common carrier, communications service provider,
16 custodian, or other individual furnish the applicant all
17 information, facilities, and technical assistance necessary to
18 accomplish the intercept unobtrusively and with a minimum of
19 interference with the services that the carrier, custodian, or
20 other individual is providing the individual whose
21 communications are to be intercepted. Any communication common
22 carrier, communications service provider, custodian, or other
23 individual furnishing facilities or technical assistance shall
24 be compensated by the applicant for reasonable expenses
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1 incurred in providing facilities or assistance at the
2 prevailing rates.
3 (d)(1) An intercept order entered pursuant to this
4 chapter may not authorize the interception of a wire or
5 electronic communication for any period longer than is
6 necessary to achieve the objective of the authorization, and
7 in no event for more than 30 days. The 30-day period begins
8 either when the investigative officer first begins to conduct
9 an intercept under the intercept order, or 10 days after the
10 order is entered, whichever is sooner.
11 (2) The issuing judge may grant extensions of an
12 intercept order, but only upon an application for an extension
13 made in accordance with this chapter. The period of extension
14 may not be for any period longer than the authorizing judge
15 deems necessary to achieve the objective for which it is
16 granted, and in no event may the extension be for more than 30
17 days. To be valid, each order and extension of an order shall
18 provide that the authorization to intercept be executed as
19 soon as practicable, be conducted in a way that minimizes the
20 interception of communications not otherwise subject to
21 interception under this chapter, and terminate upon obtaining
22 the authorized objective or within 30 days, whichever occurs
23 sooner.
24 (e) Whenever an order authorizing an intercept is
25 entered pursuant to this chapter, the order may require
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1 reports to the judge who issued the order showing what
2 progress has been made toward achieving the authorized
3 objective and the need for continued interception. Reports
4 shall be made at any interval required by the judge.
5 (f) A judge who issues an order authorizing the
6 interception of a wire or electronic communication may not
7 hear a criminal prosecution in which evidence derived from the
8 interception may be used or in which the order may be an
9 issue.
10 (g) For jurisdictional purposes, the territorial
11 jurisdiction pursuant to subsection (a) includes both the
12 location of the device and the original listening post. A
13 judge in either jurisdiction, or a circuit court judge
14 designated by the Chief Justice of the Supreme Court or by the
15 Alabama Supreme Court to hear intercept applications, has the
16 authority to issue an intercept order.
17 20-2A-6.
18 (a) The contents of a wire or electronic
19 communication intercepted by means authorized by this chapter
20 shall be recorded on tape, wire, or other comparable device,
21 to the extent practicable. The recording of the contents of a
22 wire or electronic communication under this section shall be
23 performed in a way that protects the recording from editing or
24 other alterations.
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1 (b) Immediately following the expiration of an
2 intercept order, or all extensions, if any, the recordings
3 shall be made available to the judge issuing the order and
4 shall be sealed. Custody of the recordings shall be wherever
5 the judge orders. The recordings may not be destroyed until at
6 least 10 years after the date of expiration of the order and
7 the last extension, if any. A recording may be destroyed only
8 by order of the judge who authorized the interception, or his
9 or her successor.
10 (c) Duplicate recordings may be made for use or
11 disclosure pursuant to Section 20-2A-8 for investigative
12 purposes. One copy shall remain in the custody of the judge
13 and one copy shall be given to the entity that executed the
14 intercept order.
15 (d) The presence of a seal as required in subsection
16 (b), or a satisfactory explanation of its absence, shall be a
17 prerequisite for the use or disclosure of the contents of any
18 wire or electronic communication or any evidence derived from
19 the communication under Section 20-2A-8.
20 (e) A violation of th