[atlas:bill]

AN ACT Relating to terrorism investigations pursuant to the privacy act; amending RCW 9.73.240; adding new sections to chapter 9.73 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. It is the intent of the legislature to prevent terrorist attacks, and thereby save the lives of Washington residents by providing appropriate investigative tools that facilitate and promote cooperation between local, state, and federal law enforcement agencies, that remove barriers to cooperation in terrorism investigations, and that continue to protect the privacy rights of residents of the state.

NEW SECTION. Sec. 2. A new section is added to chapter 9.73 RCW to read as follows:

The attorney general or any deputy or assistant attorney general specifically designated by the attorney general, or a prosecuting attorney or any deputy or assistant prosecuting attorney specifically designated by a prosecuting attorney, may authorize an application to a superior court for, and the court may grant, in conformity with section 3 of this act, an order authorizing the interception, by a law enforcement agency having responsibility for the investigation of the offense as to which the application is made, of wire, oral, or electronic communications if the interception may provide evidence of an act of terrorism.

NEW SECTION. Sec. 3. A new section is added to chapter 9.73 RCW to read as follows:

(1) Each application pursuant to section 2 of this act for an order authorizing the interception of a wire, oral, or electronic communication shall be made in writing upon oath or affirmation to a superior court and shall state the applicant's authority to make the application. Each application shall include the following information:

(a) The identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his or her belief that an order should be issued, including (i) details as to the particular act of terrorism that has been, is being, or is about to be committed, (ii) except as provided in subsection (11) of this section, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, and (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization of interceptions should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the court on each such application; and

(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.

(2) The court may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(3) Upon receiving the application, the court may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications, if the court determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause for belief that a person is committing, has committed, or is about to commit an act of terrorism;

(b) There is probable cause for belief that particular communications concerning the offense will be obtained through the interception;

(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) Except as provided in subsection (11) of this section, there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by such person.

(4) Each order authorizing the interception of any wire, oral, or electronic communication under this section shall specify:

(a) The identity of the person, if known, whose communications are to be intercepted;

(b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is to be granted;

(c) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(d) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

(e) The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(5) An order authorizing the interception of a wire, oral, or electronic communication under this section shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or such other person is according the person whose communications are to be intercepted. Any service provider, landlord, custodian, or other person furnishing such facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.

(6) No order entered under this section may authorize the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. The thirty‑day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing court deems necessary to achieve the purposes for which it is granted and in no event for longer than thirty days. Every order and extension shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this section, and must terminate upon attainment of the authorized objective, or in any event in thirty days. In the event the intercepted communication is in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. An interception under this section may be conducted in whole or in part by employees of the state or a political subdivision of the state, or by an individual operating under a contract with the state or a political subdivision of the state, when acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(7) Whenever an order authorizing interception is entered pursuant to this section, the order may require reports to be made to the court that issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at such intervals as the court may require.

(8)(a) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this section shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, the recordings shall be made available to the court issuing the order and shall be sealed under the court's directions. Custody of the recordings shall be wherever the court orders. The recordings shall not be destroyed except upon an order of the issuing court and in any event shall be kept for at least ten years. Duplicate recordings may be made for use, or for disclosure pursuant to the provisions of section 6 (1) and (2) of this act, for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or derivative evidence under section 6(3) of this act.

(b) Applications made and orders granted under this section shall be sealed by the court. Custody of the applications and orders shall be wherever the court directs. The applications and orders shall be disclosed only upon a showing of good cause before a superior court and shall not be destroyed except on order of the issuing or denying court, and in any event shall be kept for at least ten years.

(d) Within a reasonable time but not later than ninety days after the termination of the period of an order or extensions thereof, the issuing court shall cause to be served, on the persons named in the order, and such other parties to intercepted communications as the court may determine is in the interest of justice, an inventory which shall include notice of (i) the fact of the entry of the order, (ii) the date of the entry and the period of authorized interception, and (iii) whether during that period wire, oral, or electronic communications were or were not intercepted.

The court, upon the filing of a motion, may make available to any such person or party or his or her counsel for inspection such portions of the intercepted communications and orders as the court determines to be in the interest of justice. On an ex parte showing of good cause to the court, the serving of the inventory required by this subsection may be postponed.

(9) The contents of any wire, oral, or electronic communication intercepted pursuant to this section or evidence derived from such contents shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a court of this state unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the court upon a finding that it was not possible to furnish the party with the order and application ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.

(10)(a) An aggrieved person in any trial, hearing, or other proceeding in or before any court, administrative law judge, hearing officer or examiner, department, officer, agency, board, regulatory body, legislative committee, or other similar authority of this state or any political subdivision of this state may move to suppress the contents of any wire, oral, or electronic communication intercepted pursuant to this section, or evidence derived from such contents, on the grounds that (i) the communication was unlawfully intercepted; (ii) the order of authorization under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization.

Such a motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived from such contents, shall be treated as having been obtained in violation of this section. The court or person presiding, upon the filing of such a motion by the aggrieved person, may make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or derivative evidence as the court or person presiding determines to be in the interest of justice.

(b) In addition to any other right to appeal, the state or other proponent of evidence that is suppressed has the right to appeal from an order granting a motion to suppress made under (a) of this subsection, if the attorney for the state or other proponent certifies to the court or other official granting the motion that the appeal is not taken for purposes of delay. Such an appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.

(11) The requirements of (1)(b)(ii) and (3)(d) of this section relating to the specification of the facilities from which, or the place where, a communication is to be intercepted do not apply if:

(a) In the case of an application with respect to the interception of an oral communication:

(i) The application is by an investigative or law enforcement officer and is approved by the attorney general, a prosecuting attorney, or other attorney authorized to provide such approval under section 2 of this act;

(ii) The application contains a full and complete statement as to why such specification is not practical and identifies the person believed to be committing the offense and whose communications are to be intercepted; and

(iii) The court finds that such specification is not practical; and

(b) In the case of an application with respect to a wire or electronic communication:

(ii) The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that there is probable cause to believe that the person's actions could have the effect of thwarting interception from a specified facility;

(iii) The court finds that such showing has been adequately made; and

(iv) The order authorizing the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is reasonably proximate to the instrument through which such communication will be transmitted.

(12) An interception of a communication under an order with respect to which the requirements of (1)(b)(ii) and (3)(d) of this section do not apply by reason of subsection (11)(a) of this section shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communication service that has received an order as provided for in subsection (11)(b) of this section may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall decide such a motion expeditiously.

NEW SECTION. Sec. 4. A new section is added to chapter 9.73 RCW to read as follows:

(1) As part of a bona fide criminal investigation, the chief law enforcement officer of a law enforcement agency or his or her designee above the rank of first line supervisor may authorize the interception, transmission, or recording of a conversation or communication by officers under the following circumstances:

(a) At least one party to the conversation or communication has consented to the interception, transmission, or recording;

(b) Probable cause exists to believe that the conversation or communication involves an act of terrorism; and

(2) The agency's chief officer or designee authorizing an interception, transmission, or recording under subsection (1) of this section shall prepare and sign a written report at the time of authorization indicating:

(a) The circumstances that meet the requirements of subsection (1) of this section;

(b) The names of the authorizing and consenting parties, except that in those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged;

(d) The identity of the particular person or persons, if known, who may have committed or may commit the offense;

(e) The details of the particular offense or offenses that may have been or may be committed and the expected date, location, and approximate time of the conversation or communication; and

(f) Whether there was an attempt to obtain authorization pursuant to RCW 9.73.090(2) and, if there was such an attempt, the outcome of the attempt.

(3) An authorization under this section is valid in all jurisdictions within Washington state and for the interception of communications from additional persons if the persons are brought into the conversation or transaction by the nonconsenting party or if the nonconsenting party or such additional persons cause or invite the consenting party to enter another jurisdiction.

(4) The recording of any conversation or communication under this section shall be done in such a manner that protects the recording from editing or other alterations.

(5) An authorization made under this section is valid for no more than twenty-four hours from the time it is signed by the authorizing officer, and each authorization shall independently meet all of the requirements of this section. The authorizing officer shall sign the written report required under subsection (2) of this section, certifying the exact date and time of his or her signature. An authorization under this section may be extended not more than twice for an additional consecutive twenty-four hour period based upon the same probable cause regarding the same suspected transaction. Each such extension shall be signed by the authorizing officer.

(6) Within fifteen days after the signing of an authorization that results in any interception, transmission, or recording of a conversation or communication pursuant to this section, the law enforcement agency which made the interception, transmission, or recording shall submit a report including the original authorization under subsection (2) of this section to a judge of a court having jurisdiction which report shall identify (a) the persons, including the consenting party, who participated in the conversation, and (b) the date, location, and approximate time of the conversation.

In those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged.

A monthly report shall be filed by the law enforcement agency with the administrator for the courts indicating the number of authorizations granted, the date and time of each authorization, interceptions made, arrests resulting from an interception, and subsequent invalidations.

(7)(a) Within two judicial days of receipt of a report under subsection (6) of this section, the court shall make an ex parte review of the authorization, but not of the evidence, and shall make a determination whether the requirements of subsection (1) of this section were met. If the court determines that any of the requirements of subsection (1) of this section were not met, the court shall order that any recording and any copies or transcriptions of the conversation or communication be destroyed. Destruction of recordings, copies, or transcriptions shall be stayed pending any appeal of a finding that the requirements of subsection (1) of this section were not met.

(b) Absent a continuation under (c) of this subsection, six months following a determination under (a) of this subsection that probable cause did not exist, the court shall cause a notice to be mailed to the last known address of any nonconsenting party to the conversation or communication that was the subject of the authorization. The notice shall indicate the date, time, and place of any interception, transmission, or recording made pursuant to the authorization. The notice shall also identify the agency that sought the authorization and shall indicate that a review under (a) of this subsection resulted in a determination that the authorization was made in violation of this section.

(c) An authorizing agency may obtain six-month extensions to the notice requirement of (b) of this subsection in cases of active, ongoing criminal investigations that might be jeopardized by sending the notice.

(8) In any subsequent judicial proceeding, evidence obtained through the interception or recording of a conversation or communication pursuant to this section shall be admissible only if:

(a) The court finds that the requirements of subsection (1) of this section were met and the evidence is used in prosecuting an offense identified in subsection (1)(b) of this section, or the evidence is used in accordance with section 6 of this act; or

(b) The evidence is admitted with the permission of the person whose communication or conversation was intercepted, transmitted, or recorded; or

(c) The evidence is admitted in a prosecution for a serious violent offense as defined in RCW 9.94A.030 in which a party who consented to the interception, transmission, or recording was a victim of the offense; or

(d) The evidence is admitted in a civil suit for personal injury or wrongful death arising out of the same incident, in which a party who consented to the interception, transmission, or recording was a victim of a serious violent offense as defined in RCW 9.94A.030.

Nothing in this subsection bars the admission of testimony of a party or eyewitness to the intercepted, transmitted, or recorded conversation or communication when that testimony is unaided by information obtained solely by violation of RCW 9.73.030.

(9) Any determination of invalidity of an authorization under this section shall be reported by the court to the office of the administrator for the courts.

(10) Any person who intentionally intercepts, transmits, or records or who intentionally authorizes the interception, transmission, or recording of a conversation or communication in violation of this section is guilty of a class C felony punishable according to chapter 9A.20 RCW.

(11) An authorizing agency is liable for twenty-five thousand dollars in exemplary damages, in addition to any other damages authorized by this chapter or by other law, to a person whose conversation or communication was intercepted, transmitted, or recorded pursuant to an authorization under this section if:

(a) In a review under subsection (7) of this section, or in a suppression of evidence proceeding, it has been determined that the authorization was made without the probable cause required by subsection (1)(b) of this section; and

(b) The authorization was also made without a reasonable suspicion that the conversation or communication would involve the unlawful acts identified in subsection (1)(b) of this section.

NEW SECTION. Sec. 5. A new section is added to chapter 9.73 RCW to read as follows:

(1) This section applies to pen registers and traps and traces as defined in section 7 of this act when used to obtain information regarding an act of terrorism.

(2) An investigative or law enforcement officer may seek and the superior court may issue orders and extensions of orders authorizing the installation or application and use of pen registers and traps and traces as provided in this section. The request for an order shall be under oath and shall include the identity of the officer seeking the order and the identity of the law enforcement agency conducting the investigation. The officer must certify that the information likely to be obtained is relevant to an ongoing criminal investigation of terrorism being conducted by that agency.

(3) If the court finds that the information likely to be obtained by such installation or application and use is relevant to an ongoing criminal investigation of terrorism and finds that there is probable cause to believe that the pen register or trap and trace will lead to obtaining evidence of terrorism, contraband, fruits of crime, things criminally possessed, weapons, or other things by means of which an act of terrorism 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 an investigation of such an act or for whose arrest there is probable cause, the court shall enter an ex parte order authorizing the installation or application and use of a pen register or a trap and trace. 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 or other instrument or facility to which the pen register or trap and trace is to be attached or applied;

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

(c) The attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other instrument or facility to which the pen register or trap and trace is to be attached or applied, and, in the case of a trap and trace, the geographic limits of the trap and trace; and

(d) A statement of the act of terrorism to which the information likely to be obtained by the pen register or trap and trace 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. An order issued under this section shall authorize the installation or application and use of a pen register or a trap and trace for a period not to exceed sixty days. An extension of the original order may only be granted upon: A new request for an order under subsection (2) of this section; and a showing that there is a probability that the information or items sought under this subsection are more likely to be obtained under the extension than under the original order. No extension beyond the first extension shall be granted unless: There is a showing that there is a high probability that the information or items sought under this subsection are much more likely to be obtained under the second or subsequent extension than under the original order; and there are extraordinary circumstances such as a direct and immediate danger of death or serious bodily injury to a law enforcement officer. The period of extension shall be for a period not to exceed sixty days.

An order authorizing or approving the installation or application and use of a pen register or a trap and trace shall direct that the order be sealed until otherwise ordered by the court and that the person owning or leasing the line or other facility to which the pen register or trap and trace is attached or applied, 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 or the existence of the investigation to the listed subscriber or to any other person, unless or until otherwise ordered by the court.

(4) Upon the presentation of an order, entered under subsection (3) of this section, by an officer of a law enforcement agency authorized to install or apply 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 or application 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 or application and use is to take place, if such assistance is directed by a court order as provided in subsection (3) of this section.

Upon the request of an officer of a law enforcement agency authorized to receive the results of a trap and trace under this chapter, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install or apply the trap and trace forthwith on the appropriate line or other facility and shall furnish such law enforcement officer all additional information, facilities, and technical assistance including installation or application 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 or application and use is to take place, if such installation or application and assistance is directed by a court order as provided in subsection (3) of this section. Unless otherwise ordered by the court, the results of the trap and trace 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.

(5)(a) 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 there is probable cause to believe that an emergency situation exists that involves immediate danger of death or serious bodily injury to any person that requires the installation or application and use of a pen register or a trap and trace before an order authorizing such installation or application 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 or application and use, may have installed or applied and use a pen register or trap and trace if, within forty-eight hours after the installation or application has occurred, or begins to occur, an order approving the installation or application or use is sought and issued in accordance with subsection (3) of this section. In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the request for the order is denied, or when forty-eight hours have lapsed since the installation or application of the pen register or trap and trace, whichever is earlier. If an order approving the installation, application, or use is not obtained within forty-eight hours, any information obtained is not admissible as evidence in any legal proceeding. The knowing installation, application, or use by any law enforcement officer of a pen register or trap and trace pursuant to this subsection without seeking the authorizing order within forty-eight hours of the installation or application of the pen register or trap and trace shall constitute a violation of this chapter and be punishable as a gross misdemeanor. A provider of a wire or electronic communication 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.

(b) A law enforcement agency that authorizes the installation or application of a pen register or trap and trace under this subsection (5) shall file a monthly report with the administrator for the courts. The report shall indicate the number of authorizations made, the date and time of each authorization, whether a court authorization was sought within forty-eight hours, and whether a subsequent court authorization was granted.

NEW SECTION. Sec. 6. A new section is added to chapter 9.73 RCW to read as follows:

(1)(a) Any investigative or law enforcement officer who, by any means authorized by this section or section 3 or 4 of this act, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from such contents, may disclose such contents or derivative evidence to another investigative or law enforcement officer, including an investigative or law enforcement officer of another state, to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure; or

(b) Any investigative or law enforcement officer who, by any means authorized by this section or section 5 of this act, has obtained information from a pen register or trap and trace, or evidence derived from such information, may disclose such contents or derivative evidence to another investigative or law enforcement officer, including an investigative or law enforcement officer of another state, to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2)(a) Any investigative or law enforcement officer who, by any means authorized by this section or section 3 or 4 of this act, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from such contents, may use such contents or derivative evidence to the extent such use is appropriate to the proper performance of his or her official duties.

(3)(a) Any person who, by any means authorized by this section or section 3 or 4 of this act, has received any information concerning the contents of a wire, oral, or electronic communication, or evidence derived from such contents, intercepted in accordance with section 3 or 4 of this act, may disclose such contents or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this state or any political subdivision of this state.

(b) Any person who, by any means authorized by this section or section 5 of this act, has received information obtained from a pen register or trap and trace or evidence derived from such information, may disclose such information or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this state or any political subdivision of this state.

(4)(a) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized in section 3 or 4 of this act, intercepts wire, oral, or electronic communications relating to an offense other than an offense specified in the order of authorization, the contents of the communications, and evidence derived from the contents, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and derivative evidence may be used under subsection (3) of this section when authorized by a superior court where the court finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of section 3 or 4 of this act. Such application shall be made as soon as practicable.

(b) When an investigative or law enforcement officer, while engaged in obtaining information by any means authorized by section 5 of this act, obtains information from a pen register or trap and trace relating to an offense other than an offense specified in the authorizing order, the information and evidence derived from it may be disclosed or used as provided in subsections (1) and (2) of this section. Such information and derivative evidence may be used under subsection (3) of this section when authorized by a superior court where the court finds on subsequent application that the information was otherwise obtained in accordance with section 5 of this act. Such application shall be made as soon as practicable.

(5)(a) Any investigative or law enforcement officer, or attorney for the state or any political subdivision of the state, who by any means authorized by this section or section 3 or 4 of this act has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived from such contents, may also disclose such contents or derivative evidence to any federal intelligence, protective, immigration, national defense, or national security official to the extent that such contents or derivative evidence includes foreign intelligence or counterintelligence, as defined in section 3 of the National Security Act of 1947, 50 U.S.C. Sec. 401(a), or foreign intelligence information, as defined in subsection (19) of 18 U.S.C. Sec. 2510, to assist the official who is to receive that information in the performance of his or her official duties. Any federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.

(b) Any investigative or law enforcement officer, or attorney for the state or any political subdivision of the state, who by any means authorized by this section or section 5 of this act has obtained information from a pen register or trap and trace or evidence derived from such information, may also disclose such information or derivative evidence to any federal intelligence, protective, immigration, national defense, or national security official to the extent that such information or derivative evidence includes foreign intelligence or counterintelligence, as defined in section 3 of the National Security Act of 1947, 50 U.S.C. Sec. 401(a), or foreign intelligence information, as defined in subsection (19) of 18 U.S.C. Sec. 2510, to assist the official who is to receive that information in the performance of his or her official duties. Any federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.

(6) Any federal investigative or law enforcement officer who obtains information regarding an act of terrorism from the contents of a wire, oral, or electronic communication or obtains such information from the installation or application of a pen register or trap and trace, or obtains any evidence derived from such information, may disclose such information or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this state or any political subdivision of this state, if such information or derivative evidence was obtained in compliance with federal law, and in a case in which no party to a communication has consented to an interception, if such information or derivative evidence was obtained through an interception that was also done with prior judicial authorization whether or not such prior authorization was required by federal law.

(7) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this act shall lose its privileged character.

NEW SECTION. Sec. 7. A new section is added to chapter 9.73 RCW to read as follows:

As used in sections 2 through 6 of this act, the following terms have the following meanings:

(1) "Act of terrorism" means any of the following offenses, or conspiracy to commit any of the following offenses, as they are defined in Title 9A RCW:

(a) Terrorism in the first degree;

(b) Terrorism in the second degree;

(d) Threatening acts of terrorism in the first degree.

(2) "Aggrieved person" means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.

(3) "Computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable handheld calculator, or other similar device.

(4) "Contents," when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

(5) "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, but does not include:

(a) Any wire or oral communication;

(b) Any communication made through a tone-only paging device;

(d) Electronic funds transfer information stored by a financial institution in an electronic communication system used for the electronic storage and transfer of funds.

(6) "Electronic communication service" means any service which provides users the ability to send or receive wire or electronic communications.

(7) "Electronic communication system" means any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.

(8) "Electronic storage" means (a) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (b) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

(9) "Investigative or law enforcement officer" means any officer of the United States or of this state or a political subdivision of this state, who is empowered by law to conduct investigations of or make arrest for criminal offenses enumerated in the United States Code of laws of this state, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

(10) "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.

(11) "Pen register" means a device which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted if the device does not record or decode the contents of any communication, but the 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.

(12) "Trap and trace" means a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, but which device or process does not capture the contents of any communication.

(13) "User" means any person or entity who (a) uses an electronic communication service; and (b) is duly authorized by the provider of such service to engage in such use.

(14) "Wire communication" means any transfer of the human voice 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.

Sec. 8. RCW 9.73.240 and 1989 c 271 s 206 are each amended to read as follows:

(1) The attorney general shall have concurrent authority and power with the prosecuting attorneys to investigate violations of RCW 9.73.200 through 9.73.230 ((~~or RCW~~)), 9.73.090, or sections 2 through 6 of this act and initiate and conduct prosecutions of any violations upon request of any of the following:

(a) The person who was the nonconsenting party to the intercepted, transmitted, or recorded conversation or communication; or

(b) The county prosecuting attorney of the jurisdiction in which the offense has occurred.

(2) The request shall be communicated in writing to the attorney general.