Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Judiciary Committee

HB 2483

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Title: An act relating to protecting minors from sexual exploitation.

Brief Description: Protecting minors from sexual exploitation.

Sponsors: Representatives Sawyer, Orwall, Jinkins, Tarleton, Kilduff, Sells, McBride, Bergquist, Ormsby, Santos and Goodman.

Brief Summary of Bill

  • Authorizes the Attorney General and prosecuting attorneys to issue administrative subpoenas to providers of electronic communication services and remote computing services in order to obtain certain subscriber information in investigations involving the criminal exploitation of children.

  • Establishes requirements governing disclosure of the subpoenas, and court actions to enforce, or modify or quash, issued subpoenas, and provides immunity from civil liability for good faith compliance with a subpoena.

Hearing Date: 2/2/16

Staff: Edie Adams (786-7180).

Background:

The criminal laws addressing the sexual exploitation of children establish a number of specific crimes, including:

Under a federal law known as the Stored Communications Act, a provider of electronic communication services or remote computing services must disclose certain information about a subscriber or customer to a governmental entity when requested by an administrative subpoena authorized under either federal or state statute. Disclosable information includes only subscriber information and not content of communications, including: name; address; local and long distance telephone connection records, or records of session times and durations; length and types of service; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment, including any credit card or bank account number.

Both the federal and state constitutions protect a person's privacy interests from being invaded without authority of law. Fourth Amendment protections extend to areas where a person has a reasonable expectation of privacy, and any search requires a warrant issued upon probable cause unless an established exception to the warrant requirement applies. Federal courts have held that an individual does not have a reasonable expectation of privacy under the Fourth Amendment in subscriber information records provided to an Internet service provider, such as addresses of electronic mail sent or received, Internet protocol addresses of websites visited, and amounts of information transmitted.

The Washington Constitution provides greater protection from governmental searches of private information than is provided under the Fourth Amendment. Article 1, section 7 of the state constitution mandates that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The determination of what constitutes a "private affair" is not limited to a person's reasonable privacy expectations. Rather, Article 1, section 7 protects those privacy interests which citizens have held, and those privacy interests that citizens should be entitled to hold, safe from governmental intrusion absent authority of law. Washington courts have held that the necessary "authority of law" for a governmental invasion of private affairs is not limited to a search warrant based on probable cause, but can also include a judicially issued subpoena.  A subpoena must be based on some reason beyond statutory authorization and must be subject to judicial review to reduce mistaken intrusions of people's private affairs.

Summary of Bill:

Administrative Subpoena Authority.

In any criminal investigation of an offense involving the sexual exploitation of children, the Attorney General or a prosecuting attorney may issue a subpoena to a provider of electronic communication services or remote computing services requiring the production of records reasonably relevant to the investigation. A subpoena must specify the records or information required to be produced and specify a return date within a reasonable period. The subpoena may not require a provider to produce any customer or subscriber records or information other than the following:

"Electronic communication service" means any service that provides users the ability to send or receive wire or electronic communications. "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system.

Disclosure.

A provider is prohibited from disclosing the existence of a subpoena to the subscribers or customers whose records or information are requested or released under the subpoena for 90 days from the date of receipt of the subpoena. After the 90 day period, a provider is permitted, but not required, to notify a subscriber or customer whose information or records were disclosed. A governmental entity receiving records or information under the subpoena is not required to notify a subscriber or customers.

Modifying or quashing orders.

At any time before the return date specified in the subpoena, the provider to whom a subpoena or order is directed may petition the superior court for an order modifying or quashing the subpoena on the grounds that it is oppressive or unreasonable. A petition may be filed: in the county of the prosecuting attorney, if the order was issued by a prosecuting attorney; in Thurston County superior court, if the order was issued by the attorney general; or where the person subject to the order resides, is found, or carries on business.

Enforcement of subpoenas.

The attorney general or a prosecuting attorney may seek an injunction from the superior court to compel compliance with a subpoena. A person who neglects or refuses to comply with a subpoena may be punished for contempt of the court. An injunction may be filed: in the county of the prosecuting attorney, if the order was issued by a prosecuting attorney; in Thurston County superior court, if the order was issued by the attorney general; or where the person subject to the order resides, is found, or carries on business.

Civil liability.

Any person receiving a subpoena, including his or her officers, agents, and employees, who complies in good faith with the subpoena, may not be liable to any customer or other person for production of the materials sought, or for not disclosing to the customer that the materials were produced.

Appropriation: None.

Fiscal Note: Not requested.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.