AN
ACT Relating to interception, transmission, recording, or disclosure of
communications; amending RCW 9.73.095 and 9.73.120; adding a new section 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. 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
that there is probable cause 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. An extension
of the original order may only be granted upon: A new application for an order
under subsection (3) 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 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 presentation of an order, entered under subsection (4) of this
section, by 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)(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 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.
(b)
A law enforcement agency that authorizes the installation of a pen register or
trap and trace device under this subsection (6) 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.
Sec.
2. RCW
9.73.095 and 1996 c 197 s 1 are each amended to read as follows:
(1)
RCW 9.73.030 through 9.73.080 and section 1 of this act shall not apply
to employees of the department of corrections in the following instances:
Intercepting, recording, or divulging any telephone calls from an inmate or
resident of a state correctional facility; or intercepting, recording, or
divulging any monitored nontelephonic conversations in inmate living units,
cells, rooms, dormitories, and common spaces where inmates may be present. For
the purposes of this section, "state correctional facility" means a
facility that is under the control and authority of the department of
corrections, and used for the incarceration, treatment, or rehabilitation of
convicted felons.
(2)
All personal calls made by inmates shall be collect calls only. The calls will
be "operator announcement" type calls. The operator shall notify the
receiver of the call that the call is coming from a prison inmate, and that it
will be recorded and may be monitored.
(3)
The department of corrections shall adhere to the following procedures and
restrictions when intercepting, recording, or divulging any telephone calls
from an inmate or resident of a state correctional facility as provided for by
this section. The department shall also adhere to the following procedures and
restrictions when intercepting, recording, or divulging any monitored
nontelephonic conversations in inmate living units, cells, rooms, dormitories,
and common spaces where inmates may be present:
(a)
Unless otherwise provided for in this section, after intercepting or recording
any conversation, only the superintendent and his or her designee shall have
access to that recording.
(b)
The contents of any intercepted and recorded conversation shall be divulged
only as is necessary to safeguard the orderly operation of the correctional
facility, in response to a court order, or in the prosecution or investigation
of any crime.
(c)
All conversations that are recorded under this section, unless being used in
the ongoing investigation or prosecution of a crime, or as is necessary to
assure the orderly operation of the correctional facility, shall be destroyed
one year after the intercepting and recording.
(4)
So as to safeguard the sanctity of the attorney-client privilege, the
department of corrections shall not intercept, record, or divulge any
conversation between an inmate or resident and an attorney. The department
shall develop policies and procedures to implement this section. The
department's policies and procedures implemented under this section shall also
recognize the privileged nature of confessions made by an offender to a member
of the clergy or a priest in his or her professional character, in the course
of discipline enjoined by the church to which he or she belongs as provided in
RCW 5.60.060(3).
(5)
The department shall notify in writing all inmates, residents, and personnel of
state correctional facilities that their nontelephonic conversations may be
intercepted, recorded, or divulged in accordance with the provisions of this
section.
(6)
The department shall notify all visitors to state correctional facilities who
may enter inmate living units, cells, rooms, dormitories, or common spaces
where inmates may be present, that their conversations may intercepted,
recorded, or divulged in accordance with the provisions of this section. The
notice required under this subsection shall be accomplished through a means no
less conspicuous than a general posting in a location likely to be seen by
visitors entering the facility.
Sec.
3. RCW
9.73.120 and 1989 c 271 s 207 are each amended to read as follows:
(1)
Within thirty days after the expiration of an authorization or an extension or
renewal thereof issued pursuant to RCW 9.73.090(2) as now or hereafter amended,
the issuing or denying judge shall make a report to the administrator for the
courts stating that:
(a)
An authorization, extension or renewal was applied for;
(b)
The kind of authorization applied for;
(c)
The authorization was granted as applied for, was modified, or was denied;
(d)
The period of recording authorized by the authorization and the number and
duration of any extensions or renewals of the authorization;
(e)
The offense specified in the authorization or extension or renewal of
authorization;
(f)
The identity of the person authorizing the application and of the investigative
or law enforcement officer and agency for whom it was made;
(g)
Whether an arrest resulted from the communication which was the subject of the
authorization; and
(h)
The character of the facilities from which or the place where the
communications were to be recorded.
(2)
In addition to reports required to be made by applicants pursuant to federal
law, all judges of the superior court authorized to issue authority pursuant to
this chapter shall make annual reports on the operation of this chapter to the
administrator for the courts. The reports made under this subsection must
include information on authorizations for the installation and use of pen
registers and trap and trace devices under section 1 of this act. The
reports by the judges shall contain (a) the number of applications made; (b)
the number of authorizations issued; (c) the respective periods of such
authorizations; (d) the number and duration of any renewals thereof; (e) the
crimes in connection with which the communications or conversations were
sought; (f) the names of the applicants; and (g) such other and further
particulars as the administrator for the courts may require, except that the
administrator for the courts shall not require the reporting of information
that might lead to the disclosure of the identity of a confidential informant.
The
chief justice of the supreme court shall annually report to the governor and
the legislature on such aspects of the operation of this chapter as ((he
deems)) appropriate including any recommendations ((he may care to make))
as to legislative changes or improvements to effectuate the purposes of this
chapter and to assure and protect individual rights.
NEW
SECTION. Sec. 4. If
this act mandates an increased level of service by local governments, the local
government may, under RCW 43.135.060 and chapter 4.92 RCW, submit claims for
reimbursement by the legislature. The claims shall be subject to verification
by the office of financial management.
