SF0068 - Communication interception.
2001 |
State of Wyoming |
01LSO-0218.E1 ENGROSSED |
SENATE FILE NO. SF0068
Communication interception.
Sponsored by: Joint Judiciary Interim Committee
A BILL
for
1 AN ACT relating to
communication interception; repealing
2
and recreating existing provisions concerning communication
3
interception; prohibiting interception of certain
4
communications; providing for exceptions and criminal
5
penalties; providing for forfeiture of equipment used for
6
interception of communications; establishing a procedure
7
for peace officers to obtain authority to intercept
8
communications regarding specified offenses; providing for
9
procedures subsequent to interception of communications,
10 including notification and
reporting; authorizing civil
11 actions and providing for damages;
and providing for an
12 effective date.
13
14 Be It Enacted by the Legislature of the State of Wyoming:
15
16 Section 1. W.S. 7-3-601
through 7-3-611 are repealed
17 and recreated to read:
Page 1
1
2 ARTICLE 6
3 COMMUNICATION INTERCEPTION
4
5 7-3-601. Definitions.
6
7 (a) As used in this act:
8
9 (i) "Aggrieved
person" means any person who
10 participated in an oral, wire or
electronic communication
11 intercepted as defined in this act,
or a person against
12 whom the interception was directed;
13
14 (ii) "Contents of an oral, wire
or electronic
15 communication" includes
information concerning the identity
16 of the parties participating in the
communication and the
17 existence, meaning, substance or
purport of the
18 communication;
19
20 (iii) "Electronic
communication" means any
21 transfer of signs, signals, writing,
images, sounds, data
22 or intelligence of any nature
transmitted in whole or in
23 part by a wire, radio,
electromagnetic, photoelectronic or
Page 2
1
photooptical system that affects interstate or foreign
2
commerce but does not include:
3
4 (A) The radio portion of a cordless
5
telephone communication that is transmitted between the
6
cordless telephone handset and the base unit;
7
8 (B) Any wire or oral communication;
9
10 (C) Any
communication made through a
11 tone-only paging device; or
12
13 (D) Any
communication made through a
14 tracking device.
15
16 (iv) "Electronic, mechanical or
other device"
17 means any device or apparatus which
can be used to
18 intercept a wire, oral or electronic
communication, other
19 than:
20
21 (A) Any
telephone, telex or telegraph
22 equipment, or component thereof,
used in the ordinary
23 course of business; or
24
Page 3
1 (B) A hearing aid or similar device
used
2
solely to correct subnormal hearing.
3
4 (v) "Intercept"
means the aural or other
5
acquisition of the contents of any oral, wire or electronic
6
communication by use of an electronic, mechanical or other
7
device;
8
9 (vi) "Judge" means a judge of a district court;
10
11 (vii) "Oral communication"
means any oral
12 communication uttered by a person
who reasonably expects
13 and circumstances justify the
expectation that the
14 communication is not subject to
interception but does not
15 include any electronic
communication;
16
17 (viii) "Order" means a court order;
18
19 (ix) "Peace officer" means
as defined in W.S.
20 7-2-101 and includes any law
enforcement officer with
21 federal criminal enforcement jurisdiction;
22
23 (x) "Provider of wire or
electronic
24 communication service" means
any person who provides a
Page 4
1
service which consists of communications by wire, radio,
2
electronic, laser or other transmission of energy;
3
4 (xi) "Wire communication"
means any aural
5
transfer made in whole or in part through the use of
6
facilities for the transmission of communications by the
7
aid of wire, cable or other like connection, including the
8
use of such connection in a switching station, between the
9
point of origin and the point of reception, furnished or
10 operated by any person engaged in
providing or operating
11 such facilities for the transmission
of intrastate,
12 interstate or foreign communications,
and includes any
13 electronic storage of such
communication, but the term does
14 not include the radio portion of a
cordless telephone
15 communication that is transmitted
between the cordless
16 telephone handset and the base unit;
17
18
(xii) "This act" means W.S.
7-3-601 through
19 7-3-611.
20
21
7-3-602. Prohibition
against interception or
22 disclosure of wire, oral or electronic
communications;
23 exceptions; penalties.
24
Page 5
1 (a) Except as provided in subsection
(b) of this
2
section, no person shall willfully:
3
4 (i) Intercept
any wire, oral or electronic
5
communication;
6
7 (ii) Disclose to another person the
contents of
8
any wire, oral or electronic communication, knowing or
9
having reason to know that the information was obtained
10 through the interception of a wire,
oral or electronic
11 communication in violation of this
section;
12
13 (iii) Use the contents of any wire,
oral or
14 electronic communication knowing or
having reason to know
15 that the information was obtained
through the interception
16 of a wire, oral or electronic
communication in violation of
17 this section.
18
19 (b) Nothing
in subsection (a) of this section
20 prohibits:
21
22 (i) An officer, employee or agent of
a wire or
23 electronic communication service
whose facilities are used
24 in the transmission of a wire
communication from
Page 6
1
intercepting, disclosing or using a wire or electronic
2
communication intercepted in the normal course of that
3
person's employment if the interception is made only for
4
mechanical or service quality checks or to protect the
5
property of the provider of wire or electronic
6
communications service;
7
8 (ii) An officer, employee or agent of
any
9
provider of wire or electronic communications service from
10 providing information, facilities or
technical assistance
11 to a peace officer who is authorized
pursuant to this act
12 to intercept a wire, oral or
electronic communication;
13
14 (iii) An officer, employee or agent of
the
15 federal communications commission,
in the normal course of
16 his employment and in discharge of
the monitoring
17 responsibilities exercised by the
commission in the
18 enforcement of 47 U.S.C. Chapter 5
from intercepting a wire
19 or electronic communication, or oral
communication
20 transmitted by radio, or disclosing
or using the
21 information thereby obtained;
22
23 (iv) Any person from intercepting an
oral, wire
24 or electronic communication where
the person is a party to
Page 7
1 the
communication or where one (1) of the parties to the
2
communication has given prior consent to the interception
3
unless the communication is intercepted for the purpose of
4
committing any criminal or tortious act;
5
6 (v) A
peace officer from intercepting, using or
7
disclosing to another peace officer in the course of his
8
official duties any wire, oral or electronic communication
9
pursuant to an order permitting the interception under this
10 act;
11
12 (vi) An employee of a telephone
company from
13 intercepting a wire communication
for the sole purpose of
14 tracing the origin of the
communication upon request by the
15 recipient of the communication who
alleges that the
16 communication is obscene, harassing
or threatening in
17 nature. The person conducting the
interception shall notify
18 local law enforcement authorities of
the interception
19 within forty-eight (48) hours;
20
21 (vii) An employee of a licensed
ambulance
22 service, a fire station employing
firefighters, a public
23 utility, any other entity with a
published emergency
24 telephone number or an agency
operating an emergency
Page 8
1
telephone number system from intercepting and recording
2
incoming wire communications. A public utility may
3
intercept and record incoming wire communications on
4
published emergency telephone numbers only; or
5
6 (viii) Any person from intercepting any
7
communication broadcast by any radio transmitting device
8
unless the transmitting device is being used to intercept
9
communications in violation of this section;
10
11 (ix) Any person
from intercepting any radio
12 communication which is transmitted
by a station operating
13 on an authorized frequency within
the bands allocated to
14 the amateur, citizens band or
general mobile radio
15 services;
16
17 (x) Other users
of the same frequency to
18 intercept any radio communication
made through a system
19 that utilizes frequencies monitored
by individuals engaged
20 in the provision or the use of the
system, if the
21 communication is not scrambled or
encrypted.
22
23 (c) Any
person who violates this section is guilty of
24 a felony punishable by a fine of not more than one
Page 9
1
thousand dollars ($1,000.00), imprisonment for not more
2
than five (5) years, or both.
3
4 7-3-603. Prohibition against manufacture and
5 possession
of wire, oral or electronic communication
6
intercepting devices; exceptions; penalties.
7
8 (a) Except as provided in subsection
(b) of this
9
section, no person shall willfully manufacture, assemble,
10 possess, sell or offer for sale any
electronic, mechanical
11 or other device, with intent to
intercept wire, oral or
12 electronic communications in
violation of this act.
13
14 (b) Nothing
in subsection (a) of this section
15 prohibits an officer, agent,
employee of or person under
16 contract with or bidding upon
contract with a provider of
17 wire or electronic communication
services, the United
18 States, a state or a political
subdivision thereof, in the
19 normal course of the activities of
the United States, a
20 state or a political subdivision
thereof, to send through
21 the mail, send or carry in
interstate or foreign commerce,
22 or manufacture, assemble, possess or
sell any electronic,
23 mechanical or other device, knowing
or having reason to
24 know that the design of the device
renders it primarily
Page 10
1
useful for the purpose of the surreptitious interception of
2
wire, oral or electronic communications.
3
4 (c) Any person who violates this
section is guilty of
5
a felony punishable as provided in W.S. 7-3-602(c).
6
7 7-3-604. Seizure and forfeiture of wire or oral
8 communication
intercepting devices.
9
10 Any electronic, mechanical or other device manufactured,
11 assembled, used, sold or possessed
in violation of this act
12 may be seized by any peace officer
upon process issued by
13 any district court or district court
commissioner having
14 jurisdiction over the property or
without process if the
15 seizure is incident to an arrest or
a search under a search
16 warrant or if the peace officer
seizing the device has
17 probable cause to believe the
property was used or is
18 intended to be used in violation of
this act. Devices
19 subject to seizure under this act
are contraband subject to
20 forfeiture in accordance with law.
21
22
7-3-605. Authorization
for interception of wire, oral
23 or electronic communications.
24
Page 11
1 (a) The governor, the attorney
general or the
2
district attorney within whose jurisdiction the order is
3
sought in conjunction with the attorney general, may
4
authorize an application to a judge of competent
5
jurisdiction for an order authorizing the interception of
6
wire, oral or electronic communications by the Wyoming
7
division of criminal investigation or any law enforcement
8
agency of the state having responsibility for investigation
9
of the offense for which the application is made, if the
10 interception may provide evidence of
an attempt to commit,
11 conspiracy to commit, solicitation
to commit or the
12 commission of any of the following
felony offenses or
13 comparable crimes in any other
jurisdiction:
14
15 (i) Violations of the Wyoming
Controlled
16 Substances Act of 1971;
17
18 (ii) Any of the following, if incident
to or
19 discovered during investigation of a
violation of the
20 Wyoming Controlled Substances Act of
1971:
21
22 (A) Murder
as defined in W.S. 6-2-101 and
23 6-2-104;
24
Page 12
1 (B) Kidnapping or related felony
offense as
2
defined in W.S. 6-2-201, 6-2-202 and 6-2-204;
3
4 (C) First or second degree sexual
assault
5
as defined in W.S. 6-2-302 and 6-2-303;
6
7 (D) Robbery as defined in W.S. 6-2-401;
8
9 (E) Blackmail as defined in W.S. 6-2-402;
10
11 (F) Burglary as defined by W.S. 6-3-301; or
12
13 (G) Felony
larceny or related felony
14 offense defined in W.S. 6-3-401 through
6-3-410.
15
16
7-3-606. Procedure for
interception of wire, oral or
17 electronic communications.
18
19 (a) Each
authorized application for an order
20 permitting the interception of wire,
oral or electronic
21 communications shall be made in
writing upon oath or
22 affirmation to a judge and shall
state the applicant's
23 authority under W.S. 7-3-605(a) to
make the application.
24 Each application shall include the
following information:
Page 13
1
2 (i) The identity of the peace officer;
3
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:
7
8 (A) Specific facts concerning the
9
particular offense that is being investigated;
10
11 (B) A
particular description of the nature
12 and location of the equipment from
which, or the place
13 where, the communication is to be
intercepted;
14
15 (C) A
particular description of the type of
16 communication sought to be
intercepted;
17
18 (D) The
identity of the person or persons,
19 if known, who are suspected of
committing the offense and
20 whose communications are to be
intercepted.
21
22 (iii) A complete statement as to
whether or not
23 other investigative procedures have
been tried and have
Page 14
1 failed,
or why they reasonably appear to be unlikely to
2
succeed or would be too dangerous;
3
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 facts sufficient to
9
establish probable cause to believe that additional
10 communications of the same type will
occur after the
11 initial interception;
12
13 (v) A full and complete statement by
the
14 applicant concerning all previous
applications known to
15 have been made to any judge:
16
17 (A) For
permission to intercept wire, oral
18 or electronic communications
involving any of the same
19 persons, equipment or places
specified in the application;
20 and
21
22 (B) Action
taken by the judges on each
23 previous application.
24
Page 15
1 (vi) If the application is for
extension of an
2
order, a complete statement shall be made setting forth the
3
results thus far obtained from the interception or a
4
reasonable explanation of the failure to obtain any
5
results.
6
7 (b) The judge may require the
applicant to furnish
8
additional testimony or documentary evidence in support of
9
the application.
10
11 (c) Upon
an application, the judge may issue an ex
12 parte order, as requested or
modified, permitting
13 interception of wire, oral or
electronic communications
14 within the territorial jurisdiction
of the court in which
15 the judge is sitting, and outside
that jurisdiction but
16 within the state of Wyoming in the
case of a mobile
17 interception device authorized by a
district court within
18 such district, if the judge
determines on the basis of the
19 facts submitted by the applicant
that:
20
21 (i) There is probable cause for
belief that the
22 named person is committing or has
committed any of the
23 offenses enumerated in W.S. 7-3-605;
24
Page 16
1 (ii) There is probable cause for
belief that
2
particular communications concerning those offenses will be
3
intercepted;
4
5 (iii) Normal investigative procedures
have been
6
tried and have failed, or reasonably appear to be unlikely
7
to succeed or would be too dangerous;
8
9 (iv) There is probable cause for
belief that the
10 equipment from which, or the place
where, the wire, oral or
11 electronic communications are to be
intercepted is or is
12 about to be used in connection with
any of the offenses
13 enumerated in W.S. 7-3-605 or is
leased to, listed in the
14 name of or used by the person
suspected in the commission
15 of any enumerated offense.
16
17 (d) Each
order permitting interception of wire, oral
18 or electronic communications shall
specify:
19
20 (i) The nature and location of the
person or
21 persons, if known, whose
communications are to be
22 intercepted;
23
Page 17
1 (ii) The nature and location of the
2
communications equipment or place where the interception is
3
to occur;
4
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;
8
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;
14
15 (v) The identity of the agency
authorized to
16 intercept the communications and of
the person authorizing
17 the application.
18
19 (e) No
order entered under this section may permit
20 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 longer than thirty (30) days. The
thirty (30) day period
24 provided by this subsection begins
on the earlier of the
Page 18
1 day
on which the peace officer first begins to conduct an
2
interception under the order or ten (10) days after the
3
order is entered.
4
5 (f) Extensions of an order may be
granted upon an
6
application for extension made in accordance with
7
subsection (a) of this section and upon the findings
8
required by subsection (c) of this section. The period of
9
the extension shall be no longer than necessary to achieve
10 the objective of the extension and
in any event no longer
11 than thirty (30) days.
12
13 (g) Every
order and extension thereof shall contain a
14 provision that the permission to
intercept shall be
15 executed as soon as practicable, and
that the execution of
16 the permission shall be conducted in
such a way as to
17 minimize the interception. Every
order or extension thereof
18 shall also provide that the
interception terminate upon
19 attainment of the objective, or in
any event in thirty (30)
20 days.
21
22 (h) The
order or extension permitting interception
23 may require reports to be made to
the judge issuing the
24 order, stating the progress which
has been made toward
Page 19
1
achievement of the authorized objective and the need for
2 continued interception.
3
4 (j) The contents of any wire, oral or
electronic
5
communication intercepted shall, if possible, be recorded
6
on tape, wire or other comparable device. The recording
7
shall be performed to protect it from editing or other
8
alterations. Immediately upon expiration of the period of
9
the order, or extension thereof, the recording shall be
10 submitted to the judge issuing the
order and shall be
11 sealed under his directions. A
recording shall not be
12 destroyed except upon an order of
the judge, and in any
13 event shall be kept for five (5)
years. Duplicate
14 recordings may be made for use or
disclosure pursuant to
15 the provisions of this section. The
presence of the seal
16 provided for by this subsection, or
a satisfactory
17 explanation for its absence, is a
prerequisite for the use
18 or disclosure of the contents of any
wire or oral
19 communication or evidence derived
therefrom.
20
21 (k) Applications
made and orders granted under this
22 section shall be sealed by the
judge. Custody of the sealed
23 applications and orders shall be
maintained at the
24 direction of the judge. The
applications and orders shall
Page 20
1 be
disclosed only upon a showing of good cause before a
2
judge and shall not be destroyed except upon order of the
3
judge to whom the application was presented, and in any
4
event shall be kept for five (5) years. Any information
5
obtained pursuant to a court order permitting interception
6
of wire or oral communications shall not be used, published
7
or divulged except in accordance with the provisions of
8
this act.
9
10 (m) Within
a reasonable time, but not later than
11 ninety (90) days after the denial of
an application or the
12 termination of the period of an
order authorizing
13 interception or extension thereof,
the judge shall cause to
14 be served upon each person named in
the application and any
15 other person the judge determines as
in the interest of
16 justice, notice of the following:
17
18 (i) That an order or application has
been
19 entered under this section;
20
21 (ii) The date of the entry and the
period of
22 permitted interception or the denial
of the application;
23 and
24
Page 21
1 (iii) Whether wire, oral or electronic
2
communications were or were not intercepted.
3
4 (n) The judge, upon the filing of a
motion, may, in
5
his discretion, make available to the person or his counsel
6
for inspection any portion of the intercepted
7
communications, applications and orders as the judge
8
determines to be in the interest of justice. On an ex parte
9
showing of good cause to a judge, the service of the matter
10 required by subsection (m) of this
section may be
11 postponed.
12
13 (o) The
contents of any wire, oral or electronic
14 communication intercepted pursuant
to this section or
15 evidence derived from that
communication shall not be
16 received in evidence or otherwise
disclosed in any trial,
17 hearing or other proceeding unless
the party offering the
18 evidence, not less than twenty (20)
days before the trial,
19 hearing or proceeding, gives notice
to the court or hearing
20 officer and all other parties. The
court may then order
21 disclosure of the court order and
accompanying application.
22 If the order of interception and
accompanying application
23 has previously been disclosed, the
offering party may
24 furnish all other parties with the
order of interception
Page 22
1 and
accompanying application without further order of the
2
court or hearing officer upon proper notice. This twenty
3
(20) day period may be waived by the court or hearing
4
officer if it finds that it was not possible to furnish the
5
party with the information twenty (20) days before the
6
trial, hearing or proceeding and that no party will be
7
prejudiced by the delay in receiving the information.
8
9 (p) The contents of any intercepted
wire, oral or
10 electronic communication or evidence
derived therefrom
11 shall not be admitted as evidence in
any trial, hearing or
12 other proceeding in this state
unless the interception was
13 performed in accordance with this
act.
14
15 (q) No
otherwise privileged wire, oral or electronic
16 communication intercepted shall lose
its privileged
17 character, unless the communications
are in furtherance of
18 a criminal or tortious act in
violation of the laws of the
19 United States or this state.
20
21 (r) When
a peace officer, while engaged in
22 intercepting wire, oral or
electronic communications
23 relating to an offense specified in
the order permitting
24 interception, intercepts wire, oral
or electronic
Page 23
1
communications relating to an offense other than those
2
specified in the order, the contents thereof, and evidence
3
derived therefrom, may be disclosed or used only if the
4
offense constitutes a felony under the laws of the United
5
States or this state. If the communication concerns an
6
enumerated offense listed in W.S. 7-3-605, the agency
7
executing the order of interception shall apply to the
8
issuing court for an expansion of the order of interception
9
pursuant to paragraph (a)(ii) of this section. The
10 application shall be made as soon as
practicable.
11
12 (s) In
the event an intercepted communication is in a
13 code or a foreign language, and an
expert in that code or
14 foreign language is not reasonably
available during the
15 interception period, any minimization
required under this
16 section shall be accomplished as
soon as practicable after
17 the interception.
18
19
7-3-607. Order directing
others to furnish
20 assistance.
21
22 An order permitting the interception of a wire, oral or
23 electronic communication shall, upon
request of the
24 applicant, direct that a provider of
wire or electronic
Page 24
1 communication service,
landlord, custodian or other person
2
shall immediately furnish the applicant all information,
3
facilities and technical assistance necessary to accomplish
4
the interception unobtrusively and with a minimum of
5
interference with the services that the service provider,
6
landlord, custodian or other person is supplying the person
7
whose communication is to be intercepted. Any provider of
8
wire or electronic communication service, landlord,
9
custodian or other person furnishing these facilities or
10 technical assistance shall be
compensated therefor by the
11 applicant for reasonable expenses incurred
in providing the
12 facilities or assistance.
13
14
7-3-608. Information
furnished to attorney general by
15 executing agency; report to legislature.
16
17 (a) Upon
final execution of an order of interception,
18 the executing agency shall furnish
the following
19 information within ten (10) working
days to the attorney
20 general:
21
22 (i) Information as to the number of
orders,
23 extensions and expansions made by
the court;
24
Page 25
1 (ii) Each offense specified in the application;
2
3 (iii) The nature of the facilities from
which or
4
the place where communications were to be intercepted;
5
6 (iv) A general description of the
interceptions
7
made under any order or extension, including the nature and
8
frequency of other communications intercepted, the number
9
of persons whose communications were intercepted and the
10 nature, amount and cost of the
manpower and other resources
11 used in the interceptions; and
12
13 (v) The number of arrests resulting
from
14 interceptions made under the order
or extension and the
15 offenses for which arrests were
made.
16
17 (b) The
attorney general shall report to the joint
18 judiciary interim committee no later
than July 1 of each
19 year. The report shall contain the information required by
20 subsection (a) of this section.
21
22
7-3-609. Recovery of
civil damages for violations;
23 good faith defense.
24
Page 26
1 (a) Any person whose wire, oral or
electronic
2
communication is intercepted, disclosed or used in
3
violation of this act may recover damages against any
4
person who intercepts, discloses, uses or procures any
5
other person to intercept, disclose or use the
6
communications as follows:
7
8 (i) Actual
damages but not less than one
9
thousand dollars ($1,000.00) a day for each day of
10 violation;
11
12 (ii) Punitive damages; and
13
14 (iii) Reasonable attorney's fees and
other
15 litigation costs reasonably
incurred.
16
17 (b) A
good faith reliance on a court order
18 constitutes a complete defense to
any civil or criminal
19 action brought under this act.
20
21 7-3-610. Exclusivity of provisions.
22
23 This act shall be the exclusive means by which any
24 interception of wire, oral or
electronic communications may
Page 27
1 be permitted for
investigation of the violation of any law,
2
statute or ordinance of the state of Wyoming or any local,
3
municipal or other governmental unit.
4
5 7-3-611. Reports by attorney general and state
6 courts.
7
8 The attorney general and
Wyoming courts shall report to the
9
administrative office of the United States courts pursuant
10 to 18 U.S.C. § 2519.
11
12 Section 2. This act is
effective immediately upon
13 completion of all acts necessary for
a bill to become law
14 as provided by Article 4, Section 8
of the Wyoming
15 Constitution.
16
17 (END)
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