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S.F. No. 1431 - Electronic communications privacy act
 
Author: Senator D. Scott Dibble
 
Prepared By: Priyanka Premo, Senate Counsel (651/296-3914)
 
Date: March 18, 2019



 

Overview

This bill prohibits government entities, including law enforcement, from accessing electronic communications and related information without a warrant or specific consent. This bill provides additional requirements for obtaining a warrant for electronic communication information; requires notice to the targeted subjects; provides remedies for persons aggrieved by violations of this act; and requires the judiciary to report information about warrants issued or denied to the legislature.

Summary

Section 1. Short title. This act may be cited as the “Minnesota Electronic Communications Privacy Act.”

Section 2. Definitions. Defines the following terms: “adverse result,” “authorized possessor,” “electronic communication,” “electronic communication information,” “electronic communication service,” “electronic device,” “electronic device information,” “electronic information,” “government entity,” “service provider,” “specific consent,” and “subscriber information.”

Section 3. Government entity prohibitions; exceptions.

Subd. 1. Prohibitions. Prohibits government entities from: (1) compelling or incentivizing a service provider to provide or provide access to electronic communication information; (2)  compelling  any person, other than the authorized possessor of a device, to produce or provide access to electronic device information; and (3) accessing electronic device information by physical interaction or electronic communication with the electronic device.

Subd. 2. Exceptions. A government may, pursuant to a search warrant or wiretap order, compel a service provider or a person other than the authorized possessor of a device to produce or allow access to electronic communication information.

A government entity may access electronic device information by physical interaction or electronic communication with the device under the following circumstances:

  • pursuant to a search warrant or wiretap order;
  • with the specific consent of an authorized possessor of the device;
  • with the specific consent of the owner of the device if the device is reported as lost or stolen; or
  • if the government entity believes in good faith that the device is lost, stolen, or abandoned, provided that the entity only access information necessary to identify, verify, or contract the owner or authorized possessor of the device.

Subd. 3. Warrant. Provides additional requirements for a warrant for electronic communication information, including describing with particularity the information to be seized, identifying targeted individuals or accounts, and stating that information seized must be destroyed within 30 days and is not subject to further disclosure. Authorizes a court to appoint a special master to ensure that only necessary information is produced.

Subd. 4. Service provider; voluntary disclosure. Authorizes a service provider to share information voluntarily if it is not prohibited by law. Requires a government entity to destroy information provided voluntarily within 90 days unless the entity obtains specific consent or a retention order. Imposes requirements and restrictions on a retention order.

Subd. 5. Emergency. Permits a government entity to obtain electronic communication information in a life-threatening emergency but requires the entity to seek court approval of that action after the fact.

Subd. 6. Subpoena. Specifies that this section does not limit the ability of a government entity to obtain certain information via subpoena.

Subd. 7. Recipient voluntary disclosure. Specifies that this section does not prohibit a person who receives an electronic communication from voluntarily disclosing that information to a government entity.

Subd. 8. Construction. Provides that courts should not interpret this section to expand any existing government authority to access electronic information.

Section 4. Notices required.

Subd. 1. Notice. Requires a government entity to notify the targets of the warrant. Provides additional requirements for the notice.

Subd. 2. Emergency; delay of notice. Permits delayed notice if the government entity submits a request to the court with an affidavit. The court may issue an order of delayed notification for a period not to exceed 90 days. Following the delayed notice period, the government entity must notify the identified targets of the warrant.

Subd. 3. No identified target. For instances where a government entity obtains electronic communication information but no target is identified, the entity must submit the required information to the Minnesota Supreme Court, which must publish reports on the information.

Subd. 4. Service provider. Specifies that nothing in this section prevents a service provider from disclosing information about a request for electronic information.

Section 5. Remedies.

Subd. 1. Suppression. Permits a party in any trial, hearing, or legal proceeding to move to suppress electronic communication information obtained in violation of this act, or the state or federal constitutions.

Subd. 2. Attorney general. Authorizes the attorney general to file a civil lawsuit against a government entity to compel compliance with this act.

Subd. 3. Petition. Provides that any person whose information is sought in violation of this act or the state or federal constitutions may petition the relevant court for relief.

Subd. 4. No cause of action. Provides immunity from suit for corporations that disclose information in compliance with this act.

Section 6. Reports. Requires the judge who issues or denies a warrant for electronic communication information under section 3 to report specified information to the state court administrator, who must prepare a biennial report to the legislature regarding the warrants.

 
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