AN ACT Relating to
interception, transmission, recording, or disclosure of communications; adding
a new section to chapter 9.73 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. A new section is added
to chapter 9.73 RCW to read as follows:
(1) As used in this
section:
(a) "Wire
communication" means any 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 connection in a switching station,
furnished or operated by any person engaged in providing or operating such
facilities for the transmission of intrastate, interstate, or foreign
communications, and such term includes any electronic storage of such
communication.
(b) "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 photo-optical system, but
does not include:
(i) Any wire or oral
communication;
(ii) Any communication
made through a tone-only paging device; or
(iii) Any communication
from a tracking device.
(c) "Electronic
communication service" means any service that provides to users thereof
the ability to send or receive wire or electronic communications.
(d) "Pen
register" means a device that records or decodes electronic or other
impulses that identify the numbers dialed or otherwise transmitted on the
telephone line to which such device is attached, but such term does not include
any 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 such provider or any device used by a provider or customer
of a wire communication service for cost accounting or other like purposes in
the ordinary course of its business.
(e) "Trap and
trace device" means a device that captures the incoming electronic or
other impulses that identify the originating number of an instrument or device
from which a wire or electronic communication was transmitted.
(2) No person may
install or use a pen register or trap and trace device without a prior court
order issued under this section except as provided under subsection (6) of this
section or RCW 9.73.070.
(3) A law enforcement
officer may apply for and the superior court may issue orders and extensions of
orders authorizing the installation and use of pen registers and trap and trace
devices as provided in this section. The application shall be under oath and
shall include the identity of the officer making the application and the
identity of the law enforcement agency conducting the investigation. The
applicant must certify that the information likely to be obtained is relevant
to an ongoing criminal investigation being conducted by that agency.
(4) If the court finds
that the information likely to be obtained by such installation and use is
relevant to an ongoing criminal investigation and finds reason to believe that
the pen register or trap and trace device will lead to obtaining evidence of a
crime, contraband, fruits of crime, things criminally possessed, weapons, or
other things by means of which a crime has been committed or reasonably appears
about to be committed, or will lead to learning the location of a person who is
unlawfully restrained or reasonably believed to be a witness in a criminal
investigation or for whose arrest there is probable cause, the court shall
enter an ex parte order authorizing the installation and use of a pen register
or a trap and trace device. The order 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.
The order shall direct,
if the applicant has requested, the furnishing of information, facilities, and
technical assistance necessary to accomplish the installation of the pen
register or trap and trace device. 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 such an order may be
granted, but only upon a new application for an order under subsection (3) of
this section and upon the judicial findings required by this subsection. The
period of extension shall be for a period not to exceed sixty days.
An order authorizing or
approving the installation and use of a pen register or a trap and trace device
shall direct that the order be sealed until otherwise ordered by the court and
that the person owning or leasing the line to which the pen register or 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 by the
court.
(5) Upon the request of
an officer of a law enforcement agency 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 furnish such law
enforcement officer forthwith 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 so ordered by the court accords the party with respect to whom the
installation and use is to take place, if such assistance is directed by a
court order as provided in subsection (4) of this section.
Upon the request of an
officer of a law enforcement agency 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
device forthwith on the appropriate line and shall furnish such 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 such installation and assistance is directed by a court order as
provided in subsection (4) of this section. Unless otherwise ordered by the
court, the results of the trap and trace device shall be furnished to the
officer of a law enforcement agency, designated in the court order, at
reasonable intervals during regular business hours for the duration of the
order.
A provider of a wire or
electronic communication service, landlord, custodian, or other person who
furnishes facilities or technical assistance pursuant to this subsection shall
be reasonably compensated by the law enforcement agency that requests the
facilities or assistance for such reasonable expenses incurred in providing
such facilities and assistance.
No cause of action
shall lie in any court against any 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 section. A good faith reliance on a
court order under this section, a request pursuant to this section, 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.
(6)
Notwithstanding any other provision of this chapter, a law enforcement officer
and a prosecuting attorney or deputy prosecuting attorney who jointly and
reasonably determine that an emergency situation exists that involves immediate
danger of death or serious bodily injury to any person that requires the
installation and use of a pen register or a trap and trace device before an
order authorizing such installation and use can, with due diligence, be
obtained, and there are grounds upon which an order could be entered under this
chapter to authorize such installation and use, may have installed and use a
pen register or trap and trace device if, within forty-eight hours after the
installation has occurred, or begins to occur, an order approving the
installation or use is issued in accordance with subsection (4) of this
section. In the absence of an authorizing order, such use shall immediately
terminate when the information sought is obtained, when the application for the
order is denied or when forty-eight hours have lapsed since the installation of
the pen register or trap and trace device, whichever is earlier. If an order
approving the installation or use is not obtained within forty-eight hours, any
information obtained is not admissible as evidence in any legal proceeding.
The knowing installation or use by any law enforcement officer of a pen
register or trap and trace device pursuant to this subsection without
application for the authorizing order within forty-eight hours of the
installation shall constitute a violation of this chapter and be punishable as
a gross misdemeanor. A provider of a wire or electronic service, landlord,
custodian, or other person who furnished facilities or technical assistance
pursuant to this subsection shall be reasonably compensated by the law
enforcement agency that requests the facilities or assistance for such
reasonable expenses incurred in providing such facilities and assistance.
