SF0062 - Law enforcement measures.

2001

State of Wyoming

01LSO-0229.E1

ENGROSSED

SENATE FILE NO. SF0062

Law enforcement measures.

Sponsored by: Joint Judiciary Interim Committee

A BILL

for

1 AN ACT relating to crimes and law enforcement; prohibiting
2 the interception of communications and acts related to the
3 interception of communications; authorizing communication
4 interception by law enforcement and others under specified
5 conditions; authorizing pen registers and trap and trace
6 devices in specified conditions; requiring assistance in
7 authorized pen registers, trap and trace devices and
8 communications interceptions as specified; providing
9 criminal penalties; authorizing civil actions; repealing
10 previously enacted statutes relating to communication
11 interception; and providing for an effective date.

13 Be It Enacted by the Legislature of the State of Wyoming:

15 Section 1. W.S. 7-3-701 through 7-3-712 and 7-3-801
16 through 7-3-807 are created to read:

Page 1

1 ARTICLE 7

2 COMMUNICATION INTERCEPTION

4 7-3-701. Definitions.

6 (a) As used in this act:

8 (i) "Aggrieved person" means any person who was
9 a party to any oral, wire or electronic communication
10 intercept as defined in this act, or a person against whom
11 the interception was directed;

13 (ii) "Aural transfer" means a transfer
14 containing the human voice at any point between and
15 including the point of origin and the point of reception;

17 (iii) "Communication common carrier" shall have
18 the same meaning which is given the term "common carrier"
19 by 47 U.S.C. § 153(h);

21 (iv) "Contents" when used with respect to any
22 oral, wire or electronic communication includes any
23 information concerning the meaning, substance or purport of
24 the communication;

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2 (v) "Electronic communication" means any
3 transfer of signs, signals, writing, images, sounds, data
4 or intelligence of any nature transmitted in whole or in
5 part by a wire, radio, electromagnetic, photoelectronic or
6 photooptical system that affects interstate or foreign
7 commerce but does not include:

9 (A) Any wire or oral communication;

11 (B) Any communication made through a
12 tone-only paging device;

14 (C) Any communication made through a
15 tracking device as defined in 18 U.S.C. § 3117; or

17 (D) Electronic funds transfer information
18 stored by a financial institution in a communications
19 system used for the electronic storage and transfer of
20 funds.

22 (vi) "Electronic communication service" means
23 any service which provides to users thereof the ability to
24 send or receive wire or electronic communications;

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2 (vii) "Electronic communications system" means
3 any wire, radio, electromagnetic, photooptical or
4 photoelectronic facilities for the transmission of
5 electronic communications, and any computer facilities or
6 related electronic equipment for the electronic storage of
7 those communications;

9 (viii) "Electronic, mechanical or other device"
10 means any device or apparatus which can be used to
11 intercept a wire, oral or electronic communication, other
12 than:

14 (A) Any telephone or telegraph instrument,
15 equipment or facility or component thereof, used in the
16 ordinary course of business or by a peace officer in the
17 ordinary course of his duties; or

19 (B) A hearing aid or similar device being
20 used to correct subnormal hearing to not better than
21 normal.

23 (ix) "Intercept" means the aural or other
24 acquisition of the contents of any oral, wire or electronic

Page 4

1 communication by use of an electronic, mechanical or other
2 device;

4 (x) "Judge of competent jurisdiction" means a
5 judge of a district court;

7 (xi) "Oral communication" means any oral
8 communication uttered by a person who reasonably expects
9 and circumstances justify the expectation that the
10 communication is not subject to interception but does not
11 include any electronic communication;

13 (xii) "Peace officer" means any peace officer
14 included in W.S. 7-2-101(a)(iv)(A), (B) or (D), other than
15 members of a college or university police force, and
16 includes any law enforcement officer with federal criminal
17 enforcement jurisdiction;

19 (xiii) "Provider of wire or electronic
20 communication service" means any person who provides a
21 service which consists of communications by wire, radio,
22 electronic, laser or other transmission of energy;

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1 (xiv) "Readily accessible to the general public"
2 means, with respect to a radio communication, that the
3 communication is not:

5 (A) Scrambled or encrypted;

7 (B) Transmitted using modulation techniques
8 whose essential parameters have been withheld from the
9 public with the intention of preserving the privacy of the
10 communication;

12 (C) Carried on a subcarrier or other signal
13 subsidiary to a radio transmission;

15 (D) Transmitted over a communication system
16 provided by a common carrier, unless the communication is a
17 tone only paging system communication; or

19 (E) Transmitted on frequencies allocated
20 under part 25, subpart D, E, or F of part 74, or part 94 of
21 the rules of the federal communications commission, unless,
22 in the case of a communication transmitted on a frequency
23 allocated under part 74 that is not exclusively allocated

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1 to broadcast auxiliary services, the communication is a
2 two-way voice communication by radio.

4 (xv) "User" means any person or entity who:

6 (A) Uses an electronic communication
7 service; and

9 (B) Is duly authorized by the provider of
10 the service to engage in the use.

12 (xvi) "Wire communication" means any aural
13 transfer made in whole or in part through the use of
14 facilities for the transmission of communications by the
15 aid of wire, cable or other like connection, including the
16 use of such connection in a switching station, between the
17 point of origin and the point of reception, furnished or
18 operated by any person engaged in providing or operating
19 such facilities for the transmission of intrastate,
20 interstate or foreign communications, and includes any
21 electronic storage of such communication;

23 (xvii) "This act" means W.S. 7-3-701 through
24 7-3-712.

Page 7

2 7-3-702. Prohibition against interception or
3 disclosure of wire, oral or electronic communications;
4 exceptions; penalties.

6 (a) Except as provided in subsection (b) of this
7 section, no person shall intentionally:

9 (i) Intercept, attempt to intercept, or procure
10 any other person to intercept or attempt to intercept any
11 wire, oral or electronic communication;

13 (ii) Use, attempt to use, or procure any other
14 person to use or attempt to use any electronic, mechanical
15 or other device to intercept any oral communication when:

17 (A) Such device is affixed to, or otherwise
18 transmits a signal through, a wire, cable or other like
19 connection used in wire communication; or

21 (B) Such device transmits communications by
22 radio or interferes with the transmission of such
23 communication.

Page 8

1 (iii) Disclose or attempt to disclose to another
2 person the contents of any wire, oral or electronic
3 communication, knowing or having reason to know that the
4 information was obtained through the interception of a
5 wire, oral or electronic communication in violation of this
6 section;

8 (iv) Use or attempt to use the contents of any
9 wire, oral or electronic communication knowing or having
10 reason to know that the information was obtained through
11 the interception of a wire, oral or electronic
12 communication in violation of this section;

14 (v) Disclose, or attempt to disclose, to any
15 other person the contents of any wire, oral or electronic
16 communication, intercepted by means authorized by this act:

18 (A) Knowing or having reason to know that
19 the information was obtained through the interception of
20 such a communication in connection with a criminal
21 investigation;

Page 9

1 (B) Having obtained or received the
2 information in connection with a criminal investigation;
3 and

5 (C) With intent to improperly obstruct,
6 impede or interfere with a duly authorized criminal
7 investigation.

9 (b) Nothing in subsection (a) of this section
10 prohibits:

12 (i) An operator of a switchboard, or an officer,
13 employee or agent of a wire or electronic communication
14 service whose facilities are used in the transmission of a
15 wire communication from intercepting, disclosing or using a
16 wire or electronic communication intercepted in the normal
17 course of that person's employment while engaged in any
18 activity which is a necessary incident to the rendition of
19 his service or to the protection of the rights or property
20 of the provider of that service, except that a provider of
21 wire communication service to the public shall not utilize
22 service observing or random monitoring except for
23 mechanical or service quality control checks;

Page 10

1 (ii) An officer, employee or agent of any
2 provider of wire or electronic communications service,
3 landlords, custodians or other persons from providing
4 information, facilities or technical assistance to a peace
5 officer who is authorized pursuant to this act to intercept
6 a wire, oral or electronic communication if any such person
7 has been provided with:

9 (A) A court order directing such
10 assistance; or

12 (B) A certification in writing by a person
13 specified in W.S. 7-3-707(j) that no warrant or court order
14 is required by law, that all statutory requirements have
15 been met, and that the specified assistance is required,
16 setting forth the period of time during which the provision
17 of the information, facilities, or technical assistance is
18 authorized and specifying the information, facilities, or
19 technical assistance required. No provider of wire or
20 electronic communication service, officer, employee or
21 agent thereof, or landlord, custodian or other specified
22 person shall disclose the existence of any interception or
23 surveillance or the device used to accomplish the
24 interception or surveillance with respect to which the

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1 person has been furnished a court order or certification
2 under this act, except as may otherwise be required by
3 legal process and then only after prior notification to the
4 attorney general. Any such disclosure, shall render such
5 person liable for the civil damages provided for in W.S.
6 7-3-710. No cause of action shall lie in any court against
7 any provider of wire or electronic communication service,
8 its officers, employees or agents, landlord, custodian or
9 other specified person for providing information,
10 facilities or assistance in accordance with the terms of a
11 court order or certification under this act.

13 (iii) An officer, employee or agent of the
14 federal communications commission, in the normal course of
15 his employment and in discharge of the monitoring
16 responsibilities exercised by the commission in the
17 enforcement of 47 U.S.C. § 151 et seq., from intercepting
18 a wire or electronic communication, or oral communication
19 transmitted by radio, or disclosing or using the
20 information thereby obtained;

22 (iv) Any person from intercepting an oral, wire
23 or electronic communication where the person is a party to
24 the communication or where one (1) of the parties to the

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1 communication has given prior consent to the interception
2 unless the communication is intercepted for the purpose of
3 committing any criminal or tortious act;

5 (v) A peace officer from intercepting, using or
6 disclosing to another peace officer in the course of his
7 official duties any wire, oral or electronic communication
8 pursuant to an order permitting the interception under this
9 act;

11 (vi) An employee of a telephone company from
12 intercepting a wire communication for the sole purpose of
13 tracing the origin of the communication upon request by the
14 recipient of the communication who alleges that the
15 communication is obscene, harassing or threatening in
16 nature. The person conducting the interception shall
17 notify local law enforcement authorities of the
18 interception within forty-eight (48) hours;

20 (vii) A person from intercepting or accessing an
21 electronic communication made through an electronic
22 communication system that is configured so that the
23 electronic communication is readily accessible to the
24 general public;

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2 (viii) A person from intercepting any radio
3 communication which is transmitted:

5 (A) By any station for the use of the
6 general public, or that relates to ships, aircraft,
7 vehicles or persons in distress;

9 (B) By any governmental, law enforcement,
10 civil defense, private land mobile or public safety
11 communications system, including police and fire, readily
12 accessible to the general public;

14 (C) By a station operating on an authorized
15 frequency within the bands allocated to the amateur,
16 citizens band or general mobile radio services; or

18 (D) By any marine or aeronautical
19 communications system.

21 (ix) A person from intercepting any wire or
22 electronic communication the transmission of which is
23 causing harmful interference to any lawfully operating

Page 14

1 station or consumer electronic equipment, to the extent
2 necessary to identify the source of such interference;

4 (x) Other users of the same frequency to
5 intercept any radio communication made through a system
6 that utilizes frequencies monitored by individuals engaged
7 in the provision or the use of the system, if the
8 communication is not scrambled or encrypted; or

10 (xi) Conduct described in this paragraph unless
11 the conduct is for the purposes of direct or indirect
12 commercial advantage or private financial gain. Conduct
13 that consists of or relates to the interception of a
14 satellite transmission that is not encrypted or scrambled
15 and that is transmitted:

17 (A) To a broadcasting station for purposes
18 of retransmission to the general public; or

20 (B) As an audio subcarrier intended for
21 redistribution to facilities open to the public, but not
22 including data transmissions or telephone calls.

24 (c) It shall not be unlawful under this act:

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2 (i) To use a pen register or a trap and trace
3 device authorized by article 8 of this chapter; or

5 (ii) For a provider of electronic communication
6 service to record the fact that a wire or electronic
7 communication was initiated or completed in order to
8 protect such provider, another provider furnishing service
9 toward the completion of the wire or electronic
10 communication, or a user of that service, from fraudulent,
11 unlawful or abusive use of such service.

13 (d) Except as provided in subsection (e) of this
14 section, a person or entity providing an electronic
15 communication service to the public shall not intentionally
16 divulge the contents of any communication (other than one
17 to such person or entity, or an agent thereof) while in
18 transmission on that service to any person or entity other
19 than an addressee or intended recipient of such
20 communication or an agent of such addressee or intended
21 recipient.

Page 16

1 (e) A person or entity providing electronic
2 communication service to the public may divulge the
3 contents of any such communication:

5 (i) As otherwise authorized in W.S.
6 7-3-702(b)(i), (ii) or 7-3-706;

8 (ii) With the lawful consent of the originator
9 or any addressee or intended recipient of such
10 communication;

12 (iii) To a person employed or authorized, or
13 whose facilities are used, to forward such communication to
14 its destination; or

16 (iv) Which were inadvertently obtained by the
17 service provider and which appear to pertain to the
18 commission of a crime, if such divulgence is made to a law
19 enforcement agency.

21 (f) Except as otherwise provided in this subsection,
22 any person who violates this section is guilty of a felony
23 punishable by a fine of not more than one thousand dollars
24 ($1,000.00), imprisonment for not more than five (5) years,

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1 or both. If the intercepted communication is the radio
2 portion of a cellular telephone communication, a cordless
3 telephone communication that is transmitted between the
4 cordless handset and the base unit, a public land mobile
5 radio service communication or a paging service
6 communication, a violation of this section is a misdemeanor
7 punishable by a fine of not more than seven hundred fifty
8 dollars ($750.00), imprisonment for not more than six (6)
9 months, or both.

11 7-3-703. Prohibition against manufacture and
12 possession of wire, oral or electronic communication
13 intercepting devices; exceptions; penalties.

15 (a) Except as provided in subsection (b) of this
16 section, no person shall intentionally manufacture,
17 assemble, possess, sell or offer for sale any electronic,
18 mechanical or other device, knowing or having reason to
19 know that the design of the device renders it primarily
20 useful for the purpose of the surreptitious interception of
21 wire, oral or electronic communications.

23 (b) Nothing in subsection (a) of this section
24 prohibits an officer, agent, employee of or person under

Page 18

1 contract with or bidding upon contract with a provider of
2 wire or electronic communication services, the United
3 States, a state or a political subdivision thereof, in the
4 normal course of the activities of the United States, a
5 state or a political subdivision thereof, to send through
6 the mail, send or carry in interstate or foreign commerce,
7 or manufacture, assemble, possess or sell any electronic,
8 mechanical or other device, knowing or having reason to
9 know that the design of the device renders it primarily
10 useful for the purpose of the surreptitious interception of
11 wire, oral or electronic communications.

13 (c) Nothing in subsection (a) of this section shall
14 prohibit the manufacture, possession or use of an
15 electronic or mechanical device to access a communication
16 system that is configured so that the communication is
17 readily accessible to the public.

19 (d) Any person who violates this section is guilty of
20 a felony punishable as provided in W.S. 7-3-702(f) for
21 felony violations.

23 7-3-704. Seizure and forfeiture of wire or oral
24 communication intercepting devices.

Page 19

2 Any electronic, mechanical or other device manufactured,
3 assembled, used, sold or possessed in violation of this act
4 may be seized by any peace officer upon process issued by
5 any district court or district court commissioner having
6 jurisdiction over the property, or without process if the
7 seizure is incident to an arrest or a search under a search
8 warrant or if the peace officer seizing the device has
9 probable cause to believe the property was used or is
10 intended to be used in violation of this act. Devices
11 subject to seizure under this act are contraband subject to
12 forfeiture in accordance with law.

14 7-3-705. Authorization for interception of wire, oral
15 or electronic communications.

17 (a) The attorney general or the district attorney
18 within whose jurisdiction the order is sought in
19 conjunction with the attorney general, may authorize an
20 application to a judge of competent jurisdiction for an
21 order authorizing the interception of wire, oral or
22 electronic communications by the Wyoming division of
23 criminal investigation, federal criminal law enforcement
24 agency or any law enforcement agency of the state having

Page 20

1 responsibility for investigation of the offense for which
2 the application is made, if the interception may provide
3 evidence of an attempt to commit, conspiracy to commit,
4 solicitation to commit or the commission of any of the
5 following felony offenses or comparable crimes in any other
6 jurisdiction:

8 (i) Violations of the Wyoming Controlled
9 Substances Act of 1971;

11 (ii) Any of the following, if incident to or
12 discovered during investigation of a violation of the
13 Wyoming Controlled Substances Act of 1971:

15 (A) Murder as defined in W.S. 6-2-101 and
16 6-2-104;

18 (B) Kidnapping or related felony offense as
19 defined in W.S. 6-2-201, 6-2-202 and 6-2-204;

21 (C) First or second degree sexual assault
22 as defined in W.S. 6-2-302 and 6-2-303;

24 (D) Robbery as defined in W.S. 6-2-401;

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2 (E) Blackmail as defined in W.S. 6-2-402;

4 (F) Burglary as defined in W.S. 6-3-301; or

6 (G) Felony larceny or related felony
7 offense defined in W.S. 6-3-401 through 6-3-410.

9 7-3-706. Authorization for disclosure and use of
10 intercepted communications.

12 (a) Any peace officer who, by any means authorized by
13 this act, has obtained knowledge of the contents of any
14 wire, oral or electronic communication, or evidence derived
15 therefrom, may disclose such contents to another peace
16 officer to the extent that the disclosure is appropriate to
17 the proper performance of the official duties of the
18 officer making or receiving the disclosure.

20 (b) Any peace officer who, by any means authorized by
21 this act, has obtained knowledge of the contents of any
22 wire, oral or electronic communication or evidence derived
23 therefrom may use such contents to the extent the use is

Page 22

1 appropriate to the proper performance of his official
2 duties.

4 (c) Any person who has received, by any means
5 authorized by this act, any information concerning a wire,
6 oral or electronic communication, or evidence derived
7 therefrom intercepted in accordance with the provisions of
8 this act, may disclose the contents of that communication
9 or the derivative evidence while giving testimony under
10 oath or affirmation in any proceeding held under the
11 authority of the state or political subdivision thereof.

13 7-3-707. Procedure for interception of wire, oral or
14 electronic communications.

16 (a) Each application for an order authorizing or
17 approving the interception of wire, oral or electronic
18 communications shall be made in writing upon oath or
19 affirmation to a judge of competent jurisdiction and shall
20 state the applicant's authority under W.S. 7-3-705(a) to
21 make the application. Each application shall include the
22 following information:

Page 23

1 (i) The identity of the peace officer making the
2 application and of the officer authorizing the application;

4 (ii) A full and complete statement of the facts
5 and circumstances relied upon by the applicant to justify
6 his belief that an order should be issued, including:

8 (A) Specific facts concerning the
9 particular offense that is being investigated;

11 (B) Except as provided in subsection (u) of
12 this section, a particular description of the nature and
13 location of the facilities from which, or the place where,
14 the communication is to be intercepted;

16 (C) A particular description of the type of
17 communication sought to be intercepted;

19 (D) The identity of the person or persons,
20 if known, who are suspected of committing the offense and
21 whose communications are to be intercepted.

23 (iii) A full and complete statement as to
24 whether or not other investigative procedures have been

Page 24

1 tried and have failed, or why they reasonably appear to be
2 unlikely to succeed or would be too dangerous;

4 (iv) A statement of the required duration of the
5 interception. If the nature of the investigation will
6 require that the interception not automatically terminate
7 when the described type of communication has been first
8 obtained, the application shall state a particular
9 description of facts sufficient to establish probable cause
10 to believe that additional communications of the same type
11 will occur after the initial interception;

13 (v) A full and complete statement by the
14 applicant concerning all previous applications known to the
15 individual authorizing and making the application to have
16 been made to any judge:

18 (A) For permission to intercept wire, oral
19 or electronic communications involving any of the same
20 persons, facilities or places specified in the application;
21 and

23 (B) Action taken by the judge on each
24 previous application.

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2 (vi) If the application is for extension of an
3 order, a complete statement shall be made setting forth the
4 results thus far obtained from the interception or a
5 reasonable explanation of the failure to obtain any
6 results.

8 (b) The judge may require the applicant to furnish
9 additional testimony or documentary evidence in support of
10 the application.

12 (c) Upon an application, the judge may issue an ex
13 parte order, as requested or modified, authorizing or
14 approving interception of wire, oral or electronic
15 communications within the territorial jurisdiction of the
16 court in which the judge is sitting, and outside that
17 jurisdiction but within the state of Wyoming in the case of
18 a mobile interception device authorized by a district court
19 within such district, if the judge determines on the basis
20 of the facts submitted by the applicant that:

22 (i) There is probable cause for belief that the
23 named person is committing or has committed any of the
24 offenses enumerated in W.S. 7-3-705;

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2 (ii) There is probable cause for belief that
3 particular communications concerning those offenses will be
4 intercepted;

6 (iii) Normal investigative procedures have been
7 tried and have failed, or reasonably appear to be unlikely
8 to succeed or would be too dangerous;

10 (iv) Except as provided in subsection (u) of
11 this section, there is probable cause for belief that the
12 facilities from which, or the place where, the wire, oral
13 or electronic communications are to be intercepted is or is
14 about to be used in connection with any of the offenses
15 enumerated in W.S. 7-3-705 or is leased to, listed in the
16 name of or used by the person suspected in the commission
17 of any enumerated offense.

19 (d) Each order authorizing or approving interception
20 of wire, oral or electronic communications shall specify:

22 (i) The identity of the person or persons, if
23 known, whose communications are to be intercepted;

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1 (ii) The nature and location of the
2 communications facilities as to which, or place where the
3 authority to intercept is granted;

5 (iii) A particular description of the type of
6 communication sought to be intercepted and a statement of
7 the particular offense or offenses to which it relates;

9 (iv) The period of time during which an
10 interception is authorized including a statement as to
11 whether or not the interception shall automatically
12 terminate when the described communication is first
13 obtained;

15 (v) The identity of the agency authorized to
16 intercept the communications and of the person authorizing
17 the application.

19 (e) No order entered under this section may authorize
20 or approve the interception of any wire, oral or electronic
21 communication for any period longer than is necessary to
22 achieve the objective of the authorization, or in any event
23 no longer than thirty (30) days unless extended under
24 subsection (f) of this section. The thirty (30) day period

Page 28

1 provided by this subsection begins on the earlier of the
2 day on which the peace officer first begins to conduct an
3 interception under the order or ten (10) days after the
4 order is entered.

6 (f) Extensions of an order may be granted upon an
7 application for extension made in accordance with
8 subsection (a) of this section and upon the findings
9 required by subsection (c) of this section. The period of
10 the extension shall be no longer than the authorizing judge
11 deems necessary to achieve the purposes for which it was
12 granted and in any event no longer than thirty (30) days.

14 (g) Every order and extension thereof shall contain a
15 provision that the authorization to intercept shall be
16 executed as soon as practicable, and that the execution of
17 the permission shall be conducted in such a way as to
18 minimize the interception of communications not otherwise
19 subject to interception under this act. Every order or
20 extension thereof shall also provide that the interception
21 terminate upon attainment of the objective, or in any event
22 in thirty (30) days.

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1 (h) Whenever an order authorizing interception is
2 entered pursuant to this act, the order may require reports
3 to be made to the judge issuing the order, stating the
4 progress which has been made toward achievement of the
5 authorized objective and the need for continued
6 interception. The reports shall be made at intervals as the
7 judge may require.

9 (j) Notwithstanding any other provision of this act,
10 the attorney general, deputy criminal attorney general, or
11 district attorney within whose jurisdiction the emergency
12 exists in conjunction with the attorney general, may
13 intercept a wire, oral or electronic communication if all
14 required findings of this subsection are met and an
15 application for an order approving the interception is made
16 in accordance with this section within twenty-four (24)
17 hours after the interception has occurred, or begins to
18 occur. In the absence of an order, the interception shall
19 immediately terminate when the communication sought is
20 obtained or when the application for the order is denied,
21 whichever is earlier. In the event such application for
22 approval is denied, or in any other case where the
23 interception is terminated without an order from a court of
24 competent jurisdiction having been issued, the contents of

Page 30

1 any wire, oral or electronic communication intercepted
2 shall be treated as having been obtained in violation of
3 this act, and an inventory shall be served as provided for
4 in subsection (d) of this section on the person named in
5 the application. No interception shall be made pursuant to
6 this subsection unless a person authorized under this
7 subsection reasonably determines:

9 (i) That an emergency situation exists that
10 involves immediate danger of death or serious physical
11 injury to any person that requires a wire, oral or
12 electronic communication be intercepted before an order
13 authorizing such interception can, with due diligence be
14 obtained; and

16 (ii) There are grounds upon which an order could
17 be entered under this act to authorize an interception.

19 (k) The contents of any wire, oral or electronic
20 communication intercepted shall, if possible, be recorded
21 on tape, electronic, wire, computer storage media or other
22 comparable device. The recording shall be performed to
23 protect it from editing or other alterations. Immediately
24 upon expiration of the period of the order, or extension

Page 31

1 thereof, the recording shall be submitted to the judge
2 issuing the order and shall be sealed under his directions.
3 Custody of the recordings shall be wherever the judge
4 orders. A recording shall not be destroyed except upon an
5 order of the judge, and in any event shall be kept for ten
6 (10) years. Duplicate recordings may be made for use or
7 disclosure pursuant to the provisions of this section. The
8 presence of the seal provided for by this subsection, or a
9 satisfactory explanation for its absence, is a prerequisite
10 for the use or disclosure of the contents of any wire or
11 oral communication or evidence derived therefrom.

13 (m) Applications made and orders granted under this
14 act shall be sealed by the judge. Custody of the sealed
15 applications and orders shall be maintained at the
16 direction of the judge. The applications and orders shall
17 be disclosed only upon a showing of good cause before a
18 judge and shall not be destroyed except upon order of the
19 judge to whom the application was presented, and in any
20 event shall be kept for ten (10) years. Any information
21 obtained pursuant to a court order permitting interception
22 of wire, oral or electronic communications shall not be
23 used, published or divulged except in accordance with the
24 provisions of this act. Any violations of the provisions

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1 of this subsection or subsection (k) of this section may be
2 punished as contempt of the issuing or denying judge.

4 (n) Within a reasonable time, but not later than
5 ninety (90) days after the denial of an application or the
6 termination of the period of an order authorizing
7 interception or extension thereof, the judge shall cause to
8 be served upon each person named in the order or
9 application and any other person the judge determines as in
10 the interest of justice, notice of the following:

12 (i) That an order or application has been
13 entered under this section;

15 (ii) The date of the entry and the period of
16 permitted interception or the denial of the application;
17 and

19 (iii) Whether wire, oral or electronic
20 communications were or were not intercepted.

22 (o) The judge, upon the filing of a motion, may, in
23 his discretion, make available to the person or his counsel
24 for inspection any portion of the intercepted

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1 communications, applications and orders as the judge
2 determines to be in the interest of justice. On an ex
3 parte showing of good cause to a judge of competent
4 jurisdiction, the service of the matter required by
5 subsection (n) of this section may be postponed.

7 (p) The contents of any wire, oral or electronic
8 communication intercepted pursuant to this section or
9 evidence derived from that communication shall not be
10 received in evidence or otherwise disclosed in any trial,
11 hearing or other proceeding unless the party offering the
12 evidence, not less than twenty (20) days before the trial,
13 hearing or proceeding, gives notice to the court or hearing
14 officer and all other parties. The court may then order
15 disclosure of the court order and accompanying application.
16 If the order of interception and accompanying application
17 has previously been disclosed, the offering party may
18 furnish all other parties with the order of interception
19 and accompanying application without further order of the
20 court or hearing officer upon proper notice. This twenty
21 (20) day period may be waived by the court or hearing
22 officer if it finds that it was not possible to furnish the
23 party with the information twenty (20) days before the

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1 trial, hearing or proceeding and that no party will be
2 prejudiced by the delay in receiving the information.

4 (q) The contents of any intercepted wire, oral or
5 electronic communication or evidence derived therefrom
6 shall not be admitted as evidence in any trial, hearing or
7 other proceeding in this state unless the interception was
8 performed in accordance with this act.

10 (r) No otherwise privileged wire, oral or electronic
11 communication intercepted in accordance with or in
12 violation of this act shall lose its privileged character,
13 unless the communications are in furtherance of a criminal
14 act in violation of the laws of the United States or this
15 state.

17 (s) When a peace officer, while engaged in
18 intercepting wire, oral or electronic communications
19 relating to an offense specified in the order permitting
20 interception, intercepts wire, oral or electronic
21 communications relating to an offense other than those
22 specified in the order, the contents thereof, and evidence
23 derived therefrom, may be disclosed or used only if the
24 offense constitutes a felony under the laws of the United

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1 States or this state. If the communication concerns an
2 enumerated offense listed in W.S. 7-3-705, the agency
3 executing the order of interception shall apply to the
4 issuing court for an expansion of the order of interception
5 pursuant to paragraph (a)(ii) of this section. The
6 application shall be made as soon as practicable.

8 (t) In the event an intercepted communication is in a
9 code or a foreign language, and an expert in that code or
10 foreign language is not reasonably available during the
11 interception period, any minimization required under this
12 section shall be accomplished as soon as practicable after
13 the interception.

15 (u) The requirements of subparagraph (a)(ii)(B) and
16 paragraph (c)(iv) of this section relating to the
17 specification of the facilities from which, or the place
18 where, the communication is to be intercepted do not apply
19 if:

21 (i) In the case of an application with respect
22 to the interception of an oral communication:

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

6 (B) The judge finds that such specification
7 is not practical.

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

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

19 (B) The judge finds that such showing has
20 been adequately made; and

22 (C) The order authorizing or approving the
23 interception is limited to interception only for such time
24 as it is reasonable to presume that the person identified

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1 in the application is or was reasonably proximate to the
2 instrument through which such communication will be or was
3 transmitted.

5 (w) An interception of a communication under an order
6 with respect to which the requirements of subparagraph
7 (a)(ii)(B) and paragraph (c)(iv) of this section do not
8 apply by reason of paragraph (u)(i) of this section shall
9 not begin until the place where the communication is to be
10 intercepted is ascertained by the person implementing the
11 interception order. A provider of wire or electronic
12 communications service that has received an order as
13 provided for in paragraph (u)(ii) of this section may move
14 the court to modify or quash the order on the ground that
15 its assistance with respect to the interception cannot be
16 performed in a timely or reasonable fashion. The court,
17 upon notice to the prosecuting authority, shall decide such
18 a motion expeditiously.

20 7-3-708. Order directing others to furnish
21 assistance.

23 An order permitting the interception of a wire, oral or
24 electronic communication shall, upon request of the

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1 applicant, direct that a provider of wire or electronic
2 communication service, landlord, custodian or other person
3 shall immediately furnish the applicant all information,
4 facilities and technical assistance necessary to accomplish
5 the interception unobtrusively and with a minimum of
6 interference with the services that the service provider,
7 landlord, custodian or other person is supplying the person
8 whose communication is to be intercepted. Any provider of
9 wire or electronic communication service, landlord,
10 custodian or other person furnishing these facilities or
11 technical assistance shall be compensated therefor by the
12 applicant for reasonable expenses incurred in providing the
13 facilities or assistance.

15 7-3-709. Information furnished to attorney general by
16 executing agency; report to legislature.

18 (a) Upon final execution of an order of interception,
19 the executing agency shall furnish the following
20 information within ten (10) working days to the attorney
21 general:

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1 (i) The fact that an order or extension was
2 applied for, information as to the number of orders,
3 extensions and expansions made by the court including:

5 (A) Whether or not the order was one with
6 respect to which the requirements of W.S. 7-3-707(a)(ii)(B)
7 and (c)(iv) did not apply by reason of W.S. 7-3-707(u); and

9 (B) The fact that the order or extension
10 was granted as applied for, was modified or was denied;

12 (C) The period of interceptions authorized
13 by the order, and the number and duration of any extensions
14 of the order; and

16 (D) The identity of the applying peace
17 officer and agency making the application and the person
18 authorizing the application.

20 (ii) Each offense specified in the application
21 order or extension of an order;

23 (iii) The nature of the facilities from which or
24 the place where communications were to be intercepted;

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2 (iv) A general description of the interceptions
3 made under any order or extension, including the
4 approximate nature and frequency of incriminating
5 communications intercepted and approximate nature and
6 frequency of other communications intercepted, the number
7 of persons whose communications were intercepted and the
8 nature, amount and cost of the manpower and other resources
9 used in the interceptions.

11 (b) The prosecuting authority or investigating law
12 enforcement agency shall report to the attorney general by
13 April 1, for the preceding calendar year in which an order
14 was applied for under this act:

16 (i) The number of arrests resulting from
17 interceptions made under the order or extension and the
18 offenses for which arrests were made;

20 (ii) The number of trials resulting from such
21 interceptions;

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1 (iii) The number of motions to suppress made
2 with respect to such interceptions, and the number granted
3 or denied; and

5 (iv) The number of convictions resulting from
6 such interceptions and the offenses for which the
7 convictions were obtained and a general assessment of the
8 importance of the interceptions.

10 (c) The attorney general shall report to the joint
11 judiciary interim committee no later than July 1 of each
12 year. The report shall contain the information required by
13 subsections (a) and (b) of this section.

15 7-3-710. Recovery of civil damages for violations;
16 good faith defense.

18 (a) Any person whose wire, oral or electronic
19 communication is intercepted, disclosed or used in
20 violation of this act may recover damages against any
21 person who intercepts, discloses, uses or procures any
22 other person to intercept, disclose or use the
23 communications as follows:

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1 (i) Actual damages but not less than one
2 thousand dollars ($1,000.00) a day for each day of
3 violation;

5 (ii) Punitive damages; and

7 (iii) Reasonable attorney's fees and other
8 litigation costs reasonably incurred.

10 (b) A good faith reliance on a court order
11 constitutes a complete defense to any civil or criminal
12 action brought under this act.

14 7-3-711. Exclusivity of provisions.

16 This act shall be the exclusive means by which any
17 interception of wire, oral or electronic communications may
18 be permitted for investigation of the violation of any law,
19 statute or ordinance of the state of Wyoming or any local,
20 municipal or other governmental unit.

22 7-3-712. Reports by attorney general and state
23 courts.

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1 The attorney general and Wyoming courts shall report to the
2 administrative office of the United States courts pursuant
3 to 18 U.S.C. § 2519.

5 ARTICLE 8

6 PEN REGISTERS

8 7-3-801. Definitions.

10 (a) As used in this act:

12 (i) "Attorney for the state" means the attorney
13 general or his designee, or district attorney;

15 (ii) "Court of competent jurisdiction" means a
16 district court;

18 (iii) "Peace officer" means as defined in W.S.
19 7-3-701;

21 (iv) "Pen register" means a device which
22 identifies on hook and off hook conditions and records or
23 decodes electronic or other impulses which identify the
24 numbers dialed or otherwise transmitted on the telephone

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1 line to which the device is attached, but the term does not
2 include any device used by a provider or customer of a wire
3 or electronic communication service for billing, or
4 recording as an incident to billing, for communications
5 services provided by the provider or any device used by a
6 provider or customer of a wire communication service for
7 cost accounting or other like purposes in the ordinary
8 course of its business;

10 (v) "Trap and trace device" means a device which
11 captures the incoming electronic or other impulses which
12 identify the originating number of an instrument or device
13 from which a wire or electronic communication was
14 transmitted;

16 (vi) "Wire communication", "electronic
17 communication" and "electronic communication service" have
18 the same meanings set forth in W.S. 7-3-701;

20 (vii) "This act" means W.S. 7-3-801 through
21 7-3-807.

23 7-3-802. General prohibition on pen register and trap
24 and trace device use; exception.

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2 (a) Except as provided in this section, no person may
3 install or use a pen register or a trap and trace device
4 without first obtaining a court order under W.S. 7-3-804.

6 (b) The prohibition of subsection (a) of this section
7 does not apply with respect to the use of a pen register or
8 a trap and trace device by a provider of electronic or wire
9 communication service:

11 (i) Relating to the operation, maintenance and
12 testing of a wire or electronic communication service or to
13 the protection of the rights or property of such provider,
14 or to the protection of users of that service from abuse of
15 service or unlawful use of service;

17 (ii) To record the fact that a wire or
18 electronic communication was initiated or completed in
19 order to protect such provider, another provider furnishing
20 service toward the completion of the wire communication, or
21 a user of that service, from fraudulent, unlawful or
22 abusive use of service; or

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1 (iii) Where the consent of the user of that
2 service has been obtained.

4 (c) A state or local agency authorized to install and
5 use a pen register under this act shall use technology
6 reasonably available to it that restricts the recording or
7 decoding of electronic or other impulses to the dialing and
8 signaling information utilized in call processing.

10 (d) Whoever knowingly violates subsection (a) of this
11 section shall be fined not more than one thousand dollars
12 ($1,000.00), imprisoned not more than one (1) year, or
13 both.

15 7-3-803. Application for an order for a pen register
16 or a trap and trace device.

18 (a) An attorney for the state may make application
19 for an order or an extension of an order under W.S. 7-3-804
20 authorizing or approving the installation and use of a pen
21 register or a trap and trace device under this act, in
22 writing under oath or equivalent affirmation, to a court of
23 competent jurisdiction only for investigations of

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1 violations of the Wyoming Controlled Substances Act of
2 1971.

4 (b) An application under subsection (a) of this
5 section shall include:

7 (i) The identity of the attorney for the state,
8 making the application and the identity of the law
9 enforcement agency conducting the investigation; and

11 (ii) A certification by the applicant that the
12 information likely to be obtained is relevant to an ongoing
13 investigation of a violation of the Wyoming Controlled
14 Substances Act of 1971 being conducted by that agency.

16 7-3-804. Issuance of an order for a pen register or a
17 trap and trace device.

19 (a) Upon an application made under W.S. 7-3-803, the
20 court shall enter an ex parte order authorizing the
21 installation and use of a pen register or a trap and trace
22 device within the state if the court finds that the
23 attorney for the state has certified to the court that the
24 information likely to be obtained by such installation and

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1 use is relevant to an ongoing investigation of a violation
2 of the Wyoming Controlled Substances Act of 1971.

4 (b) An order issued under this section:

6 (i) Shall specify:

8 (A) The identity, if known, of the person
9 to whom is leased or in whose name is listed the telephone
10 line to which the pen register or trap and trace device is
11 to be attached;

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

16 (C) The number and, if known, physical
17 location of the telephone line to which the pen register or
18 trap and trace device is to be attached and, in the case of
19 a trap and trace device, the geographic limits of the trap
20 and trace order; and

22 (D) A statement of the offense to which the
23 information likely to be obtained by the pen register or
24 trap and trace device relates.

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2 (ii) Shall direct, upon the request of the
3 applicant, the furnishing of information, facilities, and
4 technical assistance necessary to accomplish the
5 installation of the pen register or trap and trace device
6 under W.S. 7-3-805.

8 (c) An order issued under this section shall
9 authorize the installation and use of a pen register or a
10 trap and trace device for a period not to exceed sixty (60)
11 days. Extensions of the order may be granted, but only
12 upon an application for an extension meeting the
13 requirements of W.S. 7-3-803 and upon the judicial finding
14 required by subsection (a) of this section. Each period of
15 extension shall be for a period not to exceed sixty (60)
16 days.

18 (d) An order authorizing or approving the
19 installation and use of a pen register or a trap and trace
20 device shall direct that:

22 (i) The order be sealed until otherwise ordered
23 by the court; and

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1 (ii) The person owning or leasing the line to
2 which the pen register or a trap and trace device is
3 attached, or who has been ordered by the court to provide
4 assistance to the applicant, not disclose the existence of
5 the pen register or trap and trace device or the existence
6 of the investigation to the listed subscriber, or to any
7 other person, unless or until otherwise ordered by the
8 court.

10 7-3-805. Assistance in installation and use of a pen
11 register or a trap and trace device.

13 (a) Upon the request of an attorney for the state or
14 an officer of a law enforcement agency authorized to
15 install and use a pen register under this act, a provider
16 of wire or electronic communication service, landlord,
17 custodian or other person shall furnish such investigative
18 or peace officer forthwith all information, facilities, and
19 technical assistance necessary to accomplish the
20 installation of the pen register unobtrusively and with a
21 minimum of interference with the services that the person
22 so ordered by the court accords the party with respect to
23 whom the installation and use is to take place, if such

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1 assistance is directed by a court order as provided in W.S.
2 7-3-804(b)(ii).

4 (b) Upon the request of an attorney for the state or
5 an officer of a law enforcement agency authorized to
6 receive the results of a trap and trace device under this
7 act, a provider of a wire or electronic communication
8 service, landlord, custodian or other person shall install
9 such device forthwith on the appropriate line and shall
10 furnish such investigative or peace officer all additional
11 information, facilities and technical assistance including
12 installation and operation of the device unobtrusively and
13 with a minimum of interference with the services that the
14 person so ordered by the court accords the party with
15 respect to whom the installation and use is to take place,
16 if such installation and assistance is directed by a court
17 order as provided in W.S. 7-3-804(b)(ii). Unless otherwise
18 ordered by the court, the results of the trap and trace
19 device shall be furnished, pursuant to W.S. 7-3-804(b) or
20 W.S. 7-3-806, to the officer of a law enforcement agency,
21 designated in the court order, at reasonable intervals
22 during regular business hours for the duration of the
23 order.

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1 (c) A provider of a wire or electronic communication
2 service, landlord, custodian or other person who furnishes
3 facilities or technical assistance pursuant to this section
4 shall be reasonably compensated for such reasonable
5 expenses incurred in providing such facilities and
6 assistance.

8 (d) No cause of action shall lie in any court against
9 any provider of a wire or electronic communication service,
10 its officers, employees, agents or other specified persons
11 for providing information, facilities or assistance in
12 accordance with the terms of a court order under this act
13 or request pursuant to W.S. 7-3-806.

15 (e) A good faith reliance on a court order under this
16 act, a request pursuant to W.S. 7-3-806, a legislative
17 authorization, or a statutory authorization is a complete
18 defense against any civil or criminal action brought under
19 this act or any other law.

21 7-3-806. Emergency pen register and trap and trace
22 device installation.

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1 (a) Notwithstanding any other provision of this act,
2 any peace officer specially designated by the attorney
3 general, deputy criminal attorney general, or district
4 attorney in conjunction with the attorney general, who
5 reasonably determines that:

7 (i) An emergency situation exists that involves:

9 (A) Immediate danger of death or serious
10 bodily injury to any person; and

12 (B) There are grounds upon which an order
13 could be entered under this act to authorize such
14 installation and use; may have installed and use a pen
15 register or trap and trace device if, within twenty-four
16 (24) hours after the installation has occurred, or begins
17 to occur, an order approving the installation or use is
18 issued in accordance with W.S. 7-3-804.

20 (b) In the absence of an authorizing order, such use
21 shall immediately terminate when the information sought is
22 obtained, when the application for the order is denied or
23 when twenty-four (24) hours have lapsed since the

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1 installation of the pen register or trap and trace device,
2 whichever is earlier.

4 (c) The knowing installation or use by any peace
5 officer of a pen register or trap and trace device pursuant
6 to subsection (a) without application for the authorizing
7 order within twenty-four (24) hours of the installation
8 shall constitute a violation of this act.

10 (d) A provider of a wire or electronic service,
11 landlord, custodian or other person who furnished
12 facilities or technical assistance pursuant to this section
13 shall be reasonably compensated for such reasonable
14 expenses incurred in providing such facilities and
15 assistance.

17 7-3-807. Reports concerning pen registers and trap
18 and trace devices.

20 The attorney general shall annually report to the joint
21 judiciary interim committee on the number of pen register
22 orders and orders for trap and trace devices applied for
23 under this act. The report shall be provided no later than
24 July 1 of each year.

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2 Section 2. W.S. 7-3-601 through 7-3-611 are repealed.

4 Section 3. This act is effective immediately upon
5 completion of all acts necessary for a bill to become law
6 as provided by Article 4, Section 8 of the Wyoming
7 Constitution.

9 (END)

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