H-0148

AN ACT Relating to pen registers and trap and trace devices; reenacting and amending RCW 9.73.030; adding a new chapter to Title 9 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. As used in this chapter:

(1) "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception;

(2) "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted, in whole or in part, by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce, but does not include:

(a) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

(b) A wire or oral communication;

(d) A communication from an electronic or mechanical device that permits the tracking of the movement of a person or object.

(3) "Electronic communication service" means a service that provides to its users the ability to send or receive wire or electronic communications;

(4) "Electronic communications system" means a wire, radio, electromagnetic, photooptical, or photoelectronic facility for the transmission of electronic communications, and computer facilities or related electronic equipment for the electronic storage of such communications;

(5) "Electronic storage" means:

(a) The temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and

(b) The storage of such communication by an electronic communication service for purposes of backup protection of the communication;

(6) "Law enforcement officer" means a general authority Washington peace officer as defined by RCW 10.93.020(3);

(7) "Pen register" means a device that records or decodes electronic or other impulses that identifies the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but the term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or a device used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business;

(8) "Trap and trace device" means a device that captures the incoming electronic or other impulses that identifies the originating number of an instrument or device from which a wire or electronic communication was transmitted;

(9) "User" means a person or entity who:

(a) Uses an electronic communication service; and

(b) Is duly authorized by the provider of the service to engage in such use; and

(10) "Wire communication" means an aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and includes the electronic storage of the communication, but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

NEW SECTION. Sec. 2. (1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 4 of this act.

(2) The prohibition of subsection (1) of this section does not apply to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:

(a) That relates to the operation, maintenance, or testing of a wire or electronic communication service, to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;

(b) To record that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful, or abusive use of service; or

(3) Whoever knowingly violates subsection (1) of this section shall be guilty of a gross misdemeanor.

NEW SECTION. Sec. 3. A law enforcement officer may make application for an order or an extention of an order under section 4 of this act authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to the superior court. An application shall include:

(1) The identity of the law enforcement officer making the application and the identity of the law enforcement agency conducting the investigation; and

(2) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

NEW SECTION. Sec. 4. (1) Upon an application made under section 3 of this act the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the law enforcement officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

(2) An order issued under this section shall specify:

(a) The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached;

(b) The identity, if known, of the person who is the subject of the criminal investigation;

(c) The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and

(d) A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.

(3) An order issued under this section shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under section 5 of this act.

(4) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. Extensions of the order may be granted, but only upon an application for an order under section 3 of this act and upon the judicial finding required by subsection (1) of this section. The period of extension may not exceed sixty days.

(5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:

(a) The order be sealed until otherwise ordered by the court; and

(b) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered b the court.

NEW SECTION. Sec. 5. (1) Upon the request of a law enforcement officer authorized to install and use a pen register under this chapter, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately furnish the law enforcement officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order as provided in section 4 of this act.

(2) Upon the request of a law enforcement officer authorized to receive the results of a trap and trace device under this chapter, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install such a device immediately on the appropriate line and shall furnish the law enforcement officer all additional information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order as provided in section 4 of this act. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to an officer of the law enforcement agency designated in the court order at reasonable intervals during regular business hours for the duration of the order.

(3) A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance according to this section shall be reasonably compensated for reasonable expenses incurred in providing the facilities and assistance.

(4) No cause of action shall lie in any court against a provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under this chapter.

(5) A good faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under this chapter or any other law.

Sec. 6. RCW 9.73.030 and 1986 c 38 s 1 & 1985 c 260 s 2 are each reenacted and amended to read as follows:

(1) Except as otherwise provided in this chapter or by sections 1 through 5 of this act, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

(2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.

(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full time or contractual or part time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.

NEW SECTION. Sec. 7. Sections 1 through 5 of this act shall constitute a new chapter in Title 9 RCW.

NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.