This website will be unavailable from Thursday, May 30, 2024 at 6:00 p.m. through Monday, June 3, 2024 at 7:00 a.m. due to data center maintenance.

 
 
  H.B. No. 2268
 
 
 
 
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 in the possession, care, custody, or
  control of a 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.  Section 4, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 4.  REQUIREMENTS FOR GOVERNMENT ACCESS TO STORED
  COMMUNICATIONS. (a) 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 [the
  contents of a wire communication or an electronic communication]
  that is [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
  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;
               [(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 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 only electronic customer data that is
  information revealing the identity of customers of the applicable
  service or information about a customer's use of the applicable
  service, [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 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 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.
         (c) [(e)]  A provider of telephonic communications service
  shall disclose to an authorized peace officer, without any form of
  legal process, subscriber listing information, including name,
  address, and telephone number or similar access code that:
               (1)  the service provides to others in the course of
  providing publicly available directory or similar assistance; or
               (2)  is solely for use in the dispatch of emergency
  vehicles and personnel responding to a distress call directed to an
  emergency dispatch system or when the information is reasonably
  necessary to aid in the dispatching of emergency vehicles and
  personnel for the immediate prevention of death, personal injury,
  or destruction of property.
         (d) [(f)]  A provider of telephonic communications service
  shall provide an authorized peace officer with the name of the
  subscriber of record whose published telephone number is provided
  to the service by an authorized peace officer.
         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 designated officer, designated director,
  or designated 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.  Section 6, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 6.  BACKUP PRESERVATION. (a) A subpoena or court order
  for disclosure of certain electronic customer data held [the
  contents of an electronic communication] in electronic storage by a
  provider of an electronic communications service or a provider of a
  remote computing service under Section 4(b) [4(c) of this article]
  may require that [the service] provider to [whom the request is
  directed] create a copy of the customer data [contents of the
  electronic communications] sought by the subpoena or court order
  for the purpose of preserving that data [those contents]. The
  [service] provider may not inform the subscriber or customer whose
  data is [communications are] being sought that the subpoena or
  court order has been issued. The [service] provider shall create
  the copy within a reasonable time as determined by the court issuing
  [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.
         (c)  The [Except as provided by Section 7 of this article,
  the] authorized peace officer shall notify the subscriber or
  customer whose electronic customer data is [communications are] the
  subject of the subpoena or court order of the creation of the copy
  not later than three days after the date of the receipt of the
  notification from the applicable [service] provider that the copy
  was 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 electronic customer data
  [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
  electronic customer data [information] sought may request the
  creation of a copy of the data [information]. The peace officer's
  belief is not subject to challenge by the subscriber or customer or
  by a [service] provider of an electronic communications service or
  a 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
  electronic customer data held in [contents of] electronic storage
  [communications stored] for the subscriber or customer has [have]
  been sought; and
                     (B)  the applicant's reasons for believing that
  the customer data [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.
         (h)(1)  The court shall order the authorized peace officer to
  file a sworn response to the motion filed by the subscriber or
  customer if the court determines that the subscriber or customer
  has complied with the requirements of Subsection (g) [of this
  section]. On request of the peace officer, the court may permit the
  response to be filed in camera. The court may conduct any
  additional proceedings the court considers appropriate if the court
  is unable to make a determination on the motion on the basis of the
  parties' initial allegations and response.
               (2)  The court shall rule on the motion as soon after
  the filing of the officer's response as practicable. The court
  shall deny the motion if the court finds that the applicant is not
  the subscriber or customer whose electronic customer data held in
  electronic storage is [stored communications are] the subject of
  the subpoena or court order or that there is reason to believe that
  the peace officer's inquiry is legitimate and that the customer
  data [communications] sought is [are] relevant to that inquiry.
  The court shall quash the subpoena or vacate the order if the court
  finds that the applicant is the subscriber or customer whose data is
  [stored communications are] the subject of the subpoena or court
  order and that there is not a reason to believe that the data is
  [communications sought are] relevant to a legitimate law
  enforcement inquiry or that there has not been substantial
  compliance with the provisions of this article.
               (3)  A court order denying a motion or application
  under this section is not a final order and no interlocutory appeal
  may be taken from the denial.
         SECTION 9.  Section 8, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 8.  PRECLUSION OF NOTIFICATION. (a) An [When an]
  authorized peace officer seeking electronic customer data
  [information] under Section 4 [of this article is not required to
  give notice to the subscriber or customer or is delaying
  notification under Section 7 of this article, the peace officer]
  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 [other] person the existence of the warrant,
  subpoena, or court order. The order is effective for the period the
  court considers appropriate. The court shall enter the order if the
  court determines that there is reason to believe that notification
  of the existence of the warrant, subpoena, or court order will have
  an adverse result [as described in Section 7(c) of this article].
         (b)  In this section, an "adverse result" means:
               (1)  endangering the life or physical safety of an
  individual;
               (2)  flight from prosecution;
               (3)  destruction of or tampering with evidence;
               (4)  intimidation of a potential witness; or
               (5)  otherwise seriously jeopardizing an investigation
  or unduly delaying a trial.
         SECTION 10.  Sections 9(a) and (b), Article 18.21, Code of
  Criminal Procedure, are amended to read as follows:
         (a)  Except as provided by Subsection (c) of this section, an
  authorized peace officer who obtains electronic customer data under
  Section 4 or other information under this article shall reimburse
  the person assembling or providing the data or information for all
  costs that are reasonably necessary and that have been directly
  incurred in searching for, assembling, reproducing, or otherwise
  providing the data or information. These costs include costs
  arising from necessary disruption of normal operations of a
  provider of an electronic communications service or a provider of a
  remote computing service in which the electronic customer data may
  be held in electronic storage or in which the other information may
  be stored.
         (b)  The authorized peace officer and the person providing
  the electronic customer data or other information may agree on the
  amount of reimbursement. If there is no agreement, the court that
  issued the order for production of the data or information shall
  determine the amount. If no court order was issued for production
  of the data or information, the court before which the criminal
  prosecution relating to the data or information would be brought
  shall determine the amount.
         SECTION 11.  Section 10, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 10.  NO CAUSE OF ACTION. A subscriber or customer of a
  provider of an [wire or] electronic communications service or a
  provider of a remote computing service does not have a cause of
  action against a provider or [wire or electronic communications or
  remote computing service,] its officers, employees, or agents[,] or
  against other specified persons for providing information,
  facilities, or assistance as required by a court order, warrant,
  subpoena, or certification under this article.
         SECTION 12.  Section 12(a), Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         (a)  Except as provided by Section 10 of this article, a
  provider of an electronic communications service or a provider of a
  remote computing service, or a subscriber or customer of that
  provider, that is [an electronic communications service] aggrieved
  by a violation of this article has a civil cause of action if the
  conduct constituting the violation was committed knowingly or
  intentionally and is entitled to:
               (1)  injunctive relief;
               (2)  a reasonable attorney's fee and other litigation
  costs reasonably incurred; and
               (3)  the sum of the actual damages suffered and any
  profits made by the violator as a result of the violation or $1,000,
  whichever is more.
         SECTION 13.  Section 7, Article 18.21, Code of Criminal
  Procedure, is repealed.
         SECTION 14.  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.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 2268 was passed by the House on May 7,
  2013, by the following vote:  Yeas 129, Nays 0, 3 present, not
  voting; that the House concurred in Senate amendments to H.B. No.
  2268 on May 24, 2013, by the following vote:  Yeas 142, Nays 0, 2
  present, not voting; and that the House adopted H.C.R. No. 212
  authorizing certain corrections in H.B. No. 2268 on May 27, 2013, by
  the following vote: Yeas 148, Nays 0, 2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 2268 was passed by the Senate, with
  amendments, on May 22, 2013, by the following vote:  Yeas 31, Nays
  0; and that the Senate adopted H.C.R. No. 212 authorizing certain
  corrections in H.B. No. 2268 on May 27, 2013, by the following vote:
  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor