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  By: Frullo, Thompson of Harris, Fletcher H.B. No. 2268
       (Senate Sponsor - Carona)
         (In the Senate - Received from the House May 8, 2013;
  May 9, 2013, read first time and referred to Committee on Criminal
  Justice; May 16, 2013, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 6, Nays 0;
  May 16, 2013, sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 2268 By:  Schwertner
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to search warrants issued in this state and other states
  for certain customer data, communications, and other related
  information held in electronic storage in this state and other
  states by providers of electronic communications services and
  remote computing services.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 18.02, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 18.02.  GROUNDS FOR ISSUANCE. (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; [or]
               (12)  contraband subject to forfeiture under Chapter 59
  of this code; or
               (13)  electronic customer data held in electronic
  storage, including the contents of and records and other
  information related to a wire communication or electronic
  communication held in electronic storage.
         (b)  For purposes of Subsection (a)(13), "electronic
  communication," "electronic storage," and "wire communication" 
  have the meanings assigned by Article 18.20, and "electronic
  customer data" has the meaning assigned by Article 18.21.
         SECTION 2.  Article 18.06(a), Code of Criminal Procedure, is
  amended to read as follows:
         (a)  A peace officer to whom a search warrant is delivered
  shall execute the warrant [it] without delay and forthwith return
  the warrant [it] to the proper magistrate. A search warrant issued
  under Section 5A, Article 18.21, must be executed in the manner
  provided by that section not later than the 11th day after the date
  of issuance. In all other cases, a search warrant [It] must be
  executed within three days from the time of its issuance.  A warrant
  issued under this chapter [, and] shall be executed within a shorter
  period if so directed in the warrant by the magistrate.
         SECTION 3.  Article 18.07(a), Code of Criminal Procedure, is
  amended to read as follows:
         (a)  The period [time] allowed for the execution of a search
  warrant, exclusive of the day of its issuance and of the day of its
  execution, is:
               (1)  15 whole days if the warrant is issued solely to
  search for and seize specimens from a specific person for DNA
  analysis and comparison, including blood and saliva samples;
               (2)  10 whole days if the warrant is issued under
  Section 5A, Article 18.21; or
               (3) [(2)]  three whole days if the warrant is issued
  for a purpose other than that described by Subdivision (1) or (2).
         SECTION 4.  Section 1(20), Article 18.20, Code of Criminal
  Procedure, is amended to read as follows:
               (20)  "Electronic storage" means any storage of
  electronic customer data in a computer, computer network, or
  computer system, regardless of whether the data is subject to
  recall, further manipulation, deletion, or transmission, and
  includes any[:
                     [(A)     a temporary, intermediate storage of a wire
  or electronic communication that is incidental to the electronic
  transmission of the communication; or
                     [(B)]  storage of a wire or electronic
  communication by an electronic communications service or a remote
  computing service [for purposes of backup protection of the
  communication].
         SECTION 5.  Section 1, Article 18.21, Code of Criminal
  Procedure, is amended by adding Subdivisions (3-b) and (3-c) to
  read as follows:
               (3-b)  "Domestic entity" has the meaning assigned by
  Section 1.002, Business Organizations Code.
               (3-c)  "Electronic customer data" means data or records
  that:
                     (A)  are acquired by or stored with the provider
  of an electronic communications service or 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 communication or electronic
  communication sent to or by the customer;
                           (iv)  the content of a wire communication or
  electronic communication sent to or by the customer; and
                           (v)  any data stored by or on behalf of the
  customer with the applicable service provider.
         SECTION 6.  Sections 4(a), (b), (c), and (d), Article 18.21,
  Code of Criminal Procedure, are amended to read as follows:
         (a)  An authorized peace officer may require a provider of an 
  electronic communications service to disclose the contents of a
  wire communication or an electronic communication that has been in
  electronic storage for not longer than 180 days by obtaining a
  warrant under Section 5A.
         (b)  An authorized peace officer may require a provider of an 
  electronic communications service to disclose the contents of a
  wire communication or an electronic communication that has been in
  electronic storage for longer than 180 days:
               (1)  if notice is not being given to the subscriber or
  customer, by obtaining a warrant under Section 5A;
               (2)  if notice is being given to the subscriber or
  customer, by obtaining:
                     (A)  an administrative subpoena authorized by
  statute;
                     (B)  a grand jury subpoena; or
                     (C)  a court order issued under Section 5 [of this
  article]; or
               (3)  as otherwise permitted by applicable federal law.
         (c)(1)  An authorized peace officer may require a provider of
  a remote computing service to disclose the contents of a wire
  communication or an electronic communication as described in
  Subdivision (2) of this subsection:
                     (A)  if notice is not being given to the
  subscriber or customer, by obtaining a warrant [issued] under
  Section 5A [this code];
                     (B)  if notice is being given to the subscriber or
  customer, by:
                           (i)  an administrative subpoena authorized
  by statute;
                           (ii)  a grand jury subpoena; or
                           (iii)  a court order issued under Section 5
  [of this article]; or
                     (C)  as otherwise permitted by applicable federal
  law.
               (2)  Subdivision (1) of this subsection applies only to
  a wire communication or an electronic communication that is in
  electronic storage:
                     (A)  on behalf of a subscriber or customer of the
  service and is received by means of electronic transmission from or
  created by means of computer processing of communications received
  by means of electronic transmission from the subscriber or
  customer; and
                     (B)  solely for the purpose of providing storage
  or computer processing services to the subscriber or customer if
  the provider of the service is not authorized to obtain access to
  the contents of those communications for purposes of providing any
  service other than storage or computer processing.
         (d)  An authorized peace officer may require a provider of an
  electronic communications service or a provider of a remote
  computing service to disclose electronic customer data not
  otherwise described by [records or other information pertaining to
  a subscriber or customer of the service, other than communications
  described in Subsection (c) of] this section[,] without giving the
  applicable subscriber or customer notice:
               (1)  by obtaining an administrative subpoena
  authorized by statute;
               (2)  by obtaining a grand jury subpoena;
               (3)  by obtaining a warrant under Section 5A;
               (4)  by obtaining the consent of the subscriber or
  customer to the disclosure of the customer data [records or
  information];
               (5)  by obtaining a court order under Section 5 [of this
  article]; or
               (6)  as otherwise permitted by applicable federal law.
         SECTION 7.  Article 18.21, Code of Criminal Procedure, is
  amended by adding Sections 5A and 5B to read as follows:
         Sec. 5A.  WARRANT ISSUED IN THIS STATE FOR STORED CUSTOMER
  DATA OR COMMUNICATIONS. (a) This section applies to a warrant
  required under Section 4 to obtain electronic customer data,
  including the contents of a wire communication or electronic
  communication.
         (b)  On the filing of an application by an authorized peace
  officer, a district judge may issue a search warrant under this
  section for electronic customer data held in electronic storage,
  including the contents of and records and other information related
  to a wire communication or electronic communication held in
  electronic storage, by a provider of an electronic communications
  service or a provider of a remote computing service described by
  Subsection (h), regardless of whether the customer data is held at a
  location in this state or at a location in 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 or affirmation of the authorized peace officer.
         (c)  A search warrant may not be issued under this section
  unless the sworn affidavit required by Article 18.01(b) sets forth
  sufficient and substantial facts to establish probable cause that:
               (1)  a specific offense has been committed; and
               (2)  the electronic customer data sought:
                     (A)  constitutes evidence of that offense or
  evidence that a particular person committed that offense; and
                     (B)  is held in electronic storage by the service
  provider on which the warrant is served under Subsection (i).
         (d)  Only the electronic customer data described in the sworn
  affidavit required by Article 18.01(b) may be seized under the
  warrant.
         (e)  A warrant issued under this section shall run in the
  name of "The State of Texas."
         (f)  Article 18.011 applies to an affidavit presented under
  Article 18.01(b) for the issuance of a warrant under this section,
  and the affidavit may be sealed in the manner provided by that
  article.
         (g)  The peace officer shall execute the warrant not later
  than the 11th day after the date of issuance, except that the
  officer shall execute the warrant within a shorter period if so
  directed in the warrant by the district judge. For purposes of this
  subsection, a warrant is executed when the warrant is served in the
  manner described by Subsection (i).
         (h)  A warrant under this section may be served only on a
  service provider 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.  The
  service provider shall produce all electronic customer data,
  contents of communications, and other information sought,
  regardless of where the information is held and within the period
  allowed for compliance with the warrant, as provided by Subsection
  (j). A court may find any officer, director, or owner of a company
  or entity in contempt of court if the person by act or omission is
  responsible for the failure of the company or entity to comply with
  the warrant within the period allowed for compliance. The failure
  of a company or entity to timely deliver the information sought in
  the warrant does not affect the admissibility of that evidence in a
  criminal proceeding.
         (i)  A search warrant issued under this section is served
  when the authorized peace officer delivers the warrant by hand, by
  facsimile 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.
         (j)  The district judge shall indicate in the warrant that
  the deadline for compliance by the provider of an electronic
  communications service or the provider of a remote computing
  service is the 15th business day after the date the warrant is
  served if the warrant is to be served on a domestic entity or a
  company or entity otherwise doing business in this state, except
  that the deadline for compliance with a warrant served in
  accordance with Section 5.251, Business Organizations Code, may be
  extended to a date that is not later than the 30th day after the date
  the warrant is served. The judge may indicate in a warrant that the
  deadline for compliance is earlier than the 15th business day after
  the date the warrant is served if the officer makes a showing and
  the judge finds that failure to comply with the warrant by the
  earlier deadline would cause serious jeopardy to an investigation,
  cause undue delay of a trial, or create a material risk of:
               (1)  danger to the life or physical safety of any
  person;
               (2)  flight from prosecution;
               (3)  the tampering with or destruction of evidence; or
               (4)  intimidation of potential witnesses.
         (k)  If the authorized peace officer serving the warrant
  under this section also delivers an affidavit form to the provider
  of an electronic communications service or the provider of a remote
  computing service responding to the warrant, and the peace officer
  also notifies the provider in writing that an executed affidavit is
  required, then the provider shall verify the authenticity of the
  customer data, contents of communications, and other information
  produced in compliance with the warrant by including with the
  information the affidavit form completed and sworn to by a person
  who is a custodian of the information or a person otherwise
  qualified to attest to its authenticity that states that the
  information was stored in the course of regularly conducted
  business of the provider and specifies whether it is the regular
  practice of the provider to store that information.
         (l)  On a service provider's compliance with a warrant under
  this section, an authorized peace officer shall file a return of the
  warrant and a copy of the inventory of the seized property as
  required under Article 18.10.
         (m)  The district judge shall hear and decide any motion to
  quash the warrant not later than the fifth business day after the
  date the service provider files the motion. The judge may allow the
  service provider to appear at the hearing by teleconference.
         (n)  A provider of an electronic communications service or a
  provider of a remote computing service responding to a warrant
  issued under this section may request an extension of the period for
  compliance with the warrant if extenuating circumstances exist to
  justify the extension.  The district judge shall grant a request for
  an extension based on those circumstances if:
               (1)  the authorized peace officer who applied for the
  warrant or another appropriate authorized peace officer agrees to
  the extension; or
               (2)  the district judge finds that the need for the
  extension outweighs the likelihood that the extension will cause an
  adverse circumstance described by Subsection (j).
         Sec. 5B.  WARRANT ISSUED IN ANOTHER STATE FOR STORED
  CUSTOMER DATA OR COMMUNICATIONS. Any domestic entity that provides
  electronic communications services or remote computing services to
  the public shall comply with a warrant issued in another state and
  seeking information described by Section 5A(b), if the warrant is
  served on the entity in a manner equivalent to the service of
  process requirements provided in Section 5A(h).
         SECTION 8.  Sections 6(a), (b), (d), (e), (f), and (g),
  Article 18.21, Code of Criminal Procedure, are amended to read as
  follows:
         (a)  A subpoena or court order for disclosure of the contents
  of an electronic communication held in electronic storage by a
  provider of an electronic communications service under Section 4(b)
  or by a provider of a remote computing service under Section 4(c)
  [of this article] may require that [the service] provider to [whom
  the request is directed] create a copy of the contents of the
  electronic communications sought by the subpoena or court order for
  the purpose of preserving those contents. The [service] provider
  may not inform the subscriber or customer whose communications are
  being sought that the subpoena or court order has been issued. The
  [service] provider shall create the copy not later than two
  business days after the date of the receipt by the [service]
  provider of the subpoena or court order.
         (b)  The provider of an electronic communications service or
  the provider of a remote computing service shall immediately notify
  the authorized peace officer who presented the subpoena or court
  order requesting the copy when the copy has been created.
         (d)  The provider of an electronic communications service or
  the provider of a remote computing service shall release the copy to
  the requesting authorized peace officer not earlier than the 14th
  day after the date of the peace officer's notice to the subscriber
  or customer if the [service] provider has not:
               (1)  initiated proceedings to challenge the request of
  the peace officer for the copy; or
               (2)  received notice from the subscriber or customer
  that the subscriber or customer has initiated proceedings to
  challenge the request.
         (e)  The provider of an electronic communications service or
  the provider of a remote computing service may not destroy or permit
  the destruction of the copy until the information has been
  delivered to the applicable [designated] law enforcement [office
  or] agency or until the resolution of any court proceedings,
  including appeals of any proceedings, relating to the subpoena or
  court order requesting the creation of the copy, whichever occurs
  last.
         (f)  An authorized peace officer who reasonably believes
  that notification to the subscriber or customer of the subpoena or
  court order would result in the destruction of or tampering with
  information sought may request the creation of a copy of the
  information. The peace officer's belief is not subject to
  challenge by the subscriber or customer or the provider of an
  electronic communications service or the provider of a remote
  computing service.
         (g)(1)  A subscriber or customer who receives notification
  as described in Subsection (c) [of this section] may file a written
  motion to quash the subpoena or vacate the court order in the court
  that issued the subpoena or court order not later than the 14th day
  after the date of the receipt of the notice. The motion must
  contain an affidavit or sworn statement stating [that]:
                     (A)  that the applicant is a subscriber or
  customer of the provider of an electronic communications service or
  the provider of a remote computing service from which the contents
  of electronic communications stored for the subscriber or customer
  have been sought; and
                     (B)  the applicant's reasons for believing that
  the information sought is not relevant to a legitimate law
  enforcement inquiry or that there has not been substantial
  compliance with the provisions of this article in some other
  respect.
               (2)  The subscriber or customer shall give written
  notice to the provider of an electronic communications service or
  the provider of a remote computing service of the challenge to the
  subpoena or court order.  The authorized peace officer [or
  designated law enforcement office or agency] requesting the
  subpoena or court order must [shall] be served a copy of the papers
  filed by personal delivery or by registered or certified mail.
         SECTION 9.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2013.
 
  * * * * *