SF0062 - Law enforcement measures.

2001

State of Wyoming

01LSO-0229

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; authorizing the
9 attorney general subpoena power in specified conditions;
10 providing criminal penalties; authorizing civil actions;
11 repealing previously enacted statutes relating to
12 communication interception; and providing for an effective
13 date.

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

Page 1

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

4 ARTICLE 7

5 COMMUNICATION INTERCEPTION

7 7-3-701. Definitions.

9 (a) As used in this act:

11 (i) "Aggrieved person" means any person who was
12 a party to any oral, wire or electronic communication
13 intercepted as defined in this act, or a person against
14 whom the interception was directed;

16 (ii) "Aural transfer" means a transfer
17 containing the human voice at any point between and
18 including the point of origin and the point of reception;

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

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1 (iv) "Contents" when used with respect to any
2 oral, wire or electronic communication includes any
3 information concerning the meaning, substance or purport of
4 the communication;

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

13 (A) Any wire or oral communication;

15 (B) Any communication made through a
16 tone-only paging device;

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

21 (D) Electronic funds transfer information
22 stored by a financial institution in a communications
23 system used for the electronic storage and transfer of
24 funds.

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2 (vi) "Electronic communication service" means
3 any service which provides to users thereof the ability to
4 send or receive wire or electronic communications;

6 (vii) "Electronic communications system" means
7 any wire, radio, electromagnetic, photooptical or
8 photoelectronic facilities for the transmission of
9 electronic communications, and any computer facilities or
10 related electronic equipment for the electronic storage of
11 those communications;

13 (viii) "Electronic, mechanical or other device"
14 means any device or apparatus which can be used to
15 intercept a wire, oral or electronic communication, other
16 than:

18 (A) Any telephone or telegraph instrument,
19 equipment or facility or component thereof, used in the
20 ordinary course of business or by a peace officer in the
21 ordinary course of his duties; or

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1 (B) A hearing aid or similar device being
2 used to correct subnormal hearing to not better than
3 normal.

5 (ix) "Intercept" means the aural or other
6 acquisition of the contents of any oral, wire or electronic
7 communication by use of an electronic, mechanical or other
8 device;

10 (x) "Judge of competent jurisdiction" means a
11 judge of a district court;

13 (xi) "Oral communication" means any oral
14 communication uttered by a person who reasonably expects
15 and circumstances justify the expectation that the
16 communication is not subject to interception but does not
17 include any electronic communication;

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

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1 (xiii) "Provider of wire or electronic
2 communication service" means any person who provides a
3 service which consists of communications by wire, radio,
4 electronic, laser or other transmission of energy;

6 (xiv) "Readily accessible to the general public"
7 means, with respect to a radio communication, that the
8 communication is not:

10 (A) Scrambled or encrypted;

12 (B) Transmitted using modulation techniques
13 whose essential parameters have been withheld from the
14 public with the intention of preserving the privacy of the
15 communication;

17 (C) Carried on a subcarrier or other signal
18 subsidiary to a radio transmission;

20 (D) Transmitted over a communication system
21 provided by a common carrier, unless the communication is a
22 tone only paging system communication; or

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1 (E) Transmitted on frequencies allocated
2 under part 25, subpart D, E, or F of part 74, or part 94 of
3 the rules of the federal communications commission, unless,
4 in the case of a communication transmitted on a frequency
5 allocated under part 74 that is not exclusively allocated
6 to broadcast auxiliary services, the communication is a
7 two-way voice communication by radio.

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

11 (A) Uses an electronic communication
12 service; and

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

17 (xvi) "Wire communication" means any aural
18 transfer made in whole or in part through the use of
19 facilities for the transmission of communications by the
20 aid of wire, cable or other like connection, including the
21 use of such connection in a switching station, between the
22 point of origin and the point of reception, furnished or
23 operated by any person engaged in providing or operating
24 such facilities for the transmission of intrastate,

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1 interstate or foreign communications, and includes any
2 electronic storage of such communication;

4 (xvii) "This act" means W.S. 7-3-701 through
5 7-3-712.

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

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

14 (i) Intercept, attempt to intercept, or procure
15 any other person to intercept or attempt to intercept any
16 wire, oral or electronic communication;

18 (ii) Use, attempt to use, or procure any other
19 person to use or attempt to use any electronic, mechanical
20 or other device to intercept any oral communication when:

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

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2 (B) Such device transmits communications by
3 radio or interferes with the transmission of such
4 communication.

6 (iii) Disclose or attempt to disclose to another
7 person the contents of any wire, oral or electronic
8 communication, knowing or having reason to know that the
9 information was obtained through the interception of a
10 wire, oral or electronic communication in violation of this
11 section;

13 (iv) Use or attempt to use the contents of any
14 wire, oral or electronic communication knowing or having
15 reason to know that the information was obtained through
16 the interception of a wire, oral or electronic
17 communication in violation of this section;

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

23 (A) Knowing or having reason to know that
24 the information was obtained through the interception of

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1 such a communication in connection with a criminal
2 investigation;

4 (B) Having obtained or received the
5 information in connection with a criminal investigation;
6 and

8 (C) With intent to improperly obstruct,
9 impede or interfere with a duly authorized criminal
10 investigation.

12 (b) Nothing in subsection (a) of this section
13 prohibits:

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

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1 service observing or random monitoring except for
2 mechanical or service quality control checks;

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

12 (A) A court order directing such
13 assistance; or

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

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

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

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1 (iv) Any person from intercepting an oral, wire
2 or electronic communication where the person is a party to
3 the communication or where one (1) of the parties to the
4 communication has given prior consent to the interception
5 unless the communication is intercepted for the purpose of
6 committing any criminal or tortious act;

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

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

23 (vii) A person from intercepting or accessing an
24 electronic communication made through an electronic

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1 communication system that is configured so that the
2 electronic communication is readily accessible to the
3 general public;

5 (viii) A person from intercepting any radio
6 communication which is transmitted:

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

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

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

21 (D) By any marine or aeronautical
22 communications system.

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1 (ix) A person from intercepting any wire or
2 electronic communication the transmission of which is
3 causing harmful interference to any lawfully operating
4 station or consumer electronic equipment, to the extent
5 necessary to identify the source of such interference;

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

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

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

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

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

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

10 (ii) For a provider of electronic communication
11 service to record the fact that a wire or electronic
12 communication was initiated or completed in order to
13 protect such provider, another provider furnishing service
14 toward the completion of the wire or electronic
15 communication, or a user of that service, from fraudulent,
16 unlawful or abusive use of such service.

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

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1 communication or an agent of such addressee or intended
2 recipient.

4 (e) A person or entity providing electronic
5 communication service to the public may divulge the
6 contents of any such communication:

8 (i) As otherwise authorized in W.S.
9 7-3-702(b)(i), (ii) or 7-3-706;

11 (ii) With the lawful consent of the originator
12 or any addressee or intended recipient of such
13 communication;

15 (iii) To a person employed or authorized, or
16 whose facilities are used, to forward such communication to
17 its destination; or

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

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1 (f) Except as otherwise provided in this subsection,
2 any person who violates this section is guilty of a felony
3 punishable by a fine of not more than one thousand dollars
4 ($1,000.00), imprisonment for not more than five (5) years,
5 or both. If the intercepted communication is the radio
6 portion of a cellular telephone communication, a cordless
7 telephone communication that is transmitted between the
8 cordless handset and the base unit, a public land mobile
9 radio service communication or a paging service
10 communication, a violation of this section is a misdemeanor
11 punishable by a fine of not more than seven hundred fifty
12 dollars ($750.00), imprisonment for not more than six (6)
13 months, or both.

15 7-3-703. Prohibition against manufacture and
16 possession of wire, oral or electronic communication
17 intercepting devices; exceptions; penalties.

19 (a) Except as provided in subsection (b) of this
20 section, no person shall intentionally manufacture,
21 assemble, possess, sell or offer for sale any electronic,
22 mechanical or other device, knowing or having reason to
23 know that the design of the device renders it primarily

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1 useful for the purpose of the surreptitious interception of
2 wire, oral or electronic communications.

4 (b) Nothing in subsection (a) of this section
5 prohibits an officer, agent, employee of or person under
6 contract with or bidding upon contract with a provider of
7 wire or electronic communication services, the United
8 States, a state or a political subdivision thereof, in the
9 normal course of the activities of the United States, a
10 state or a political subdivision thereof, to send through
11 the mail, send or carry in interstate or foreign commerce,
12 or manufacture, assemble, possess or sell any electronic,
13 mechanical or other device, knowing or having reason to
14 know that the design of the device renders it primarily
15 useful for the purpose of the surreptitious interception of
16 wire, oral or electronic communications.

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

22 7-3-704. Seizure and forfeiture of wire or oral
23 communication intercepting devices.

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

13 7-3-705. Authorization for interception of wire, oral
14 or electronic communications.

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

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

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

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

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

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

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

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

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

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

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

8 7-3-706. Authorization for disclosure and use of
9 intercepted communications.

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

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

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

11 7-3-707. Procedure for interception of wire, oral or
12 electronic communications.

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

22 (i) The identity of the peace officer making the
23 application and of the officer authorizing the application;

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

5 (A) Specific facts concerning the
6 particular offense that is being investigated;

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

13 (C) A particular description of the type of
14 communication sought to be intercepted;

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

20 (iii) A full and complete statement as to
21 whether or not other investigative procedures have been
22 tried and have failed, or why they reasonably appear to be
23 unlikely to succeed or would be too dangerous;

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

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

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

20 (B) Action taken by the judge on each
21 previous application.

23 (vi) If the application is for extension of an
24 order, a complete statement shall be made setting forth the

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1 results thus far obtained from the interception or a
2 reasonable explanation of the failure to obtain any
3 results.

5 (b) The judge may require the applicant to furnish
6 additional testimony or documentary evidence in support of
7 the application.

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

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

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

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;

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

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

21 (i) The identity of the person or persons, if
22 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 longer than thirty (30) days. The thirty (30) day period
24 provided by this subsection begins on the earlier of the

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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.

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 the authorizing judge
10 deems necessary to achieve the purposes for which it was
11 granted and in any event no longer than thirty (30) days.

13 (g) Every order and extension thereof shall contain a
14 provision that the authorization 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 of communications not otherwise
18 subject to interception under this act. Every order or
19 extension thereof shall also provide that the interception
20 terminate upon attainment of the objective, or in any event
21 in thirty (30) days.

23 (h) Whenever an order authorizing interception is
24 entered pursuant to this act, the order may require reports

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1 to be made to the judge issuing the order, stating the
2 progress which has been made toward achievement of the
3 authorized objective and the need for continued
4 interception. The reports shall be made at intervals as
5 the judge may require.

7 (j) Notwithstanding any other provision of this act,
8 the governor, attorney general, deputy criminal attorney
9 general, or district attorney within whose jurisdiction the
10 emergency exists in conjunction with the attorney general,
11 may intercept a wire, oral or electronic communication if
12 all required findings of this subsection are met and an
13 application for an order approving the interception is made
14 in accordance with this section within forty-eight (48)
15 hours after the interception has occurred, or begins to
16 occur. In the absence of an order, the interception shall
17 immediately terminate when the communication sought is
18 obtained or when the application for the order is denied,
19 whichever is earlier. In the event such application for
20 approval is denied, or in any other case where the
21 interception is terminated without an order having been
22 issued, the contents of any wire, oral or electronic
23 communication intercepted shall be treated as having been
24 obtained in violation of this act, and an inventory shall

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1 be served as provided for in subsection (d) of this section
2 on the person named in the application. No interception
3 shall be made pursuant to this subsection unless a person
4 authorized under this subsection reasonably determines:

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

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

16 (k) The contents of any wire, oral or electronic
17 communication intercepted shall, if possible, be recorded
18 on tape, electronic, wire, computer storage media or other
19 comparable device. The recording shall be performed to
20 protect it from editing or other alterations. Immediately
21 upon expiration of the period of the order, or extension
22 thereof, the recording shall be submitted to the judge
23 issuing the order and shall be sealed under his directions.
24 Custody of the recordings shall be wherever the judge

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

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

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

9 (i) That an order or application has been
10 entered under this section;

12 (ii) The date of the entry and the period of
13 permitted interception or the denial of the application;
14 and

16 (iii) Whether wire, oral or electronic
17 communications were or were not intercepted.

19 (o) The judge, upon the filing of a motion, may, in
20 his discretion, make available to the person or his counsel
21 for inspection any portion of the intercepted
22 communications, applications and orders as the judge
23 determines to be in the interest of justice. On an ex
24 parte showing of good cause to a judge of competent

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1 jurisdiction, the service of the matter required by
2 subsection (n) of this section may be postponed.

4 (p) The contents of any wire, oral or electronic
5 communication intercepted pursuant to this section or
6 evidence derived from that communication shall not be
7 received in evidence or otherwise disclosed in any trial,
8 hearing or other proceeding unless the party offering the
9 evidence, not less than twenty (20) days before the trial,
10 hearing or proceeding, gives notice to the court or hearing
11 officer and all other parties. The court may then order
12 disclosure of the court order and accompanying application.
13 If the order of interception and accompanying application
14 has previously been disclosed, the offering party may
15 furnish all other parties with the order of interception
16 and accompanying application without further order of the
17 court or hearing officer upon proper notice. This twenty
18 (20) day period may be waived by the court or hearing
19 officer if it finds that it was not possible to furnish the
20 party with the information twenty (20) days before the
21 trial, hearing or proceeding and that no party will be
22 prejudiced by the delay in receiving the information.

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

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

14 (s) When a peace officer, while engaged in
15 intercepting wire, oral or electronic communications
16 relating to an offense specified in the order permitting
17 interception, intercepts wire, oral or electronic
18 communications relating to an offense other than those
19 specified in the order, the contents thereof, and evidence
20 derived therefrom, may be disclosed or used only if the
21 offense constitutes a felony under the laws of the United
22 States or this state. If the communication concerns an
23 enumerated offense listed in W.S. 7-3-705, the agency
24 executing the order of interception shall apply to the

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1 issuing court for an expansion of the order of interception
2 pursuant to paragraph (a)(ii) of this section. The
3 application shall be made as soon as practicable.

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

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

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

21 (A) The application contains a full and
22 complete statement as to why such specification is not
23 practical and identifies the person committing the offense
24 and whose communications are to be intercepted; and

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2 (B) The judge finds that such specification
3 is not practical.

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

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

15 (B) The judge finds that such showing has
16 been adequately made; and

18 (C) The order authorizing or approving the
19 interception is limited to interception only for such time
20 as it is reasonable to presume that the person identified
21 in the application is or was reasonably proximate to the
22 instrument through which such communication will be or was
23 transmitted.

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

16 7-3-708. Order directing others to furnish
17 assistance.

19 An order permitting the interception of a wire, oral or
20 electronic communication shall, upon request of the
21 applicant, direct that a provider of wire or electronic
22 communication service, landlord, custodian or other person
23 shall immediately furnish the applicant all information,
24 facilities and technical assistance necessary to accomplish

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

11 7-3-709. Information furnished to attorney general by
12 executing agency; report to legislature.

14 (a) Upon final execution of an order of interception,
15 the executing agency shall furnish the following
16 information within ten (10) working days to the attorney
17 general:

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

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

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

8 (C) The period of interceptions authorized
9 by the order, and the number and duration of any extensions
10 of the order; and

12 (D) The identity of the applying peace
13 officer and agency making the application and the person
14 authorizing the application.

16 (ii) Each offense specified in the application
17 order or extension of an order;

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

22 (iv) A general description of the interceptions
23 made under any order or extension, including the
24 approximate nature and frequency of incriminating

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1 communications intercepted and approximate nature and
2 frequency of other communications intercepted, the number
3 of persons whose communications were intercepted and the
4 nature, amount and cost of the manpower and other resources
5 used in the interceptions.

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

12 (i) The number of arrests resulting from
13 interceptions made under the order or extension and the
14 offenses for which arrests were made;

16 (ii) The number of trials resulting from such
17 interceptions;

19 (iii) The number of motions to suppress made
20 with respect to such interceptions, and the number granted
21 or denied; and

23 (iv) The number of convictions resulting from
24 such interceptions and the offenses for which the

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1 convictions were obtained and a general assessment of the
2 importance of the interceptions.

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

9 7-3-710. Recovery of civil damages for violations;
10 good faith defense.

12 (a) Any person whose wire, oral or electronic
13 communication is intercepted, disclosed or used in
14 violation of this act may recover damages against any
15 person who intercepts, discloses, uses or procures any
16 other person to intercept, disclose or use the
17 communications as follows:

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

23 (ii) Punitive damages; and

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1 (iii) Reasonable attorney's fees and other
2 litigation costs reasonably incurred.

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

8 7-3-711. Exclusivity of provisions.

10 This act shall be the exclusive means by which any
11 interception of wire, oral or electronic communications may
12 be permitted for investigation of the violation of any law,
13 statute or ordinance of the state of Wyoming or any local,
14 municipal or other governmental unit.

16 7-3-712. Reports by attorney general and state
17 courts.

19 The attorney general and Wyoming courts shall report to the
20 administrative office of the United States courts pursuant
21 to 18 U.S.C. § 2519.

23 ARTICLE 8

24 PEN REGISTERS

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2 7-3-801. Definitions.

4 (a) As used in this act:

6 (i) "Attorney for the state" means the governor,
7 attorney general or his designee, or district attorney;

9 (ii) "Court of competent jurisdiction" means a
10 district court;

12 (iii) "Peace officer" means as defined in W.S.
13 7-3-701;

15 (iv) "Pen register" means a device which
16 identifies on hook and off hook conditions and records or
17 decodes electronic or other impulses which identify the
18 numbers dialed or otherwise transmitted on the telephone
19 line to which the device is attached, but the term does not
20 include any device used by a provider or customer of a wire
21 or electronic communication service for billing, or
22 recording as an incident to billing, for communications
23 services provided by the provider or any device used by a
24 provider or customer of a wire communication service for

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1 cost accounting or other like purposes in the ordinary
2 course of its business;

4 (v) "Trap and trace device" means a device which
5 captures the incoming electronic or other impulses which
6 identify the originating number of an instrument or device
7 from which a wire or electronic communication was
8 transmitted;

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

14 (vii) "This act" means W.S. 7-3-801 through
15 7-3-807.

17 7-3-802. General prohibition on pen register and trap
18 and trace device use; exception.

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

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

6 (i) Relating to the operation, maintenance and
7 testing of a wire or electronic communication service or to
8 the protection of the rights or property of such provider,
9 or to the protection of users of that service from abuse of
10 service or unlawful use of service;

12 (ii) To record the fact that a wire or
13 electronic communication was initiated or completed in
14 order to protect such provider, another provider furnishing
15 service toward the completion of the wire communication, or
16 a user of that service, from fraudulent, unlawful or
17 abusive use of service; or

19 (iii) Where the consent of the user of that
20 service has been obtained.

22 (c) A state or local agency authorized to install and
23 use a pen register under this act shall use technology
24 reasonably available to it that restricts the recording or

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1 decoding of electronic or other impulses to the dialing and
2 signaling information utilized in call processing.

4 (d) Whoever knowingly violates subsection (a) of this
5 section shall be fined not more than one thousand dollars
6 ($1,000.00), imprisoned not more than one (1) year, or
7 both.

9 7-3-803. Application for an order for a pen register
10 or a trap and trace device.

12 (a) An attorney for the state may make application
13 for an order or an extension of an order under W.S. 7-3-804
14 authorizing or approving the installation and use of a pen
15 register or a trap and trace device under this act, in
16 writing under oath or equivalent affirmation, to a court of
17 competent jurisdiction only for investigations of
18 violations of the Wyoming Controlled Substances Act of
19 1971.

21 (b) An application under subsection (a) of this
22 section shall include:

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1 (i) The identity of the attorney for the state,
2 making the application and the identity of the law
3 enforcement agency conducting the investigation; and

5 (ii) A certification by the applicant that the
6 information likely to be obtained is relevant to an ongoing
7 investigation of a violation of the Wyoming Controlled
8 Substances Act of 1971 being conducted by that agency.

10 7-3-804. Issuance of an order for a pen register or a
11 trap and trace device.

13 (a) Upon an application made under W.S. 7-3-803, the
14 court shall enter an ex parte order authorizing the
15 installation and use of a pen register or a trap and trace
16 device within the state if the court finds that the
17 attorney for the state has certified to the court that the
18 information likely to be obtained by such installation and
19 use is relevant to an ongoing investigation of a violation
20 of the Wyoming Controlled Substances Act of 1971.

22 (b) An order issued under this section:

24 (i) Shall specify:

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

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

10 (C) The number and, if known, physical
11 location of the telephone line to which the pen register or
12 trap and trace device is to be attached and, in the case of
13 a trap and trace device, the geographic limits of the trap
14 and trace order; and

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

20 (ii) Shall direct, upon the request of the
21 applicant, the furnishing of information, facilities, and
22 technical assistance necessary to accomplish the
23 installation of the pen register or trap and trace device
24 under W.S. 7-3-805.

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

12 (d) An order authorizing or approving the
13 installation and use of a pen register or a trap and trace
14 device shall direct that:

16 (i) The order be sealed until otherwise ordered
17 by the court; and

19 (ii) The person owning or leasing the line to
20 which the pen register or a trap and trace device is
21 attached, or who has been ordered by the court to provide
22 assistance to the applicant, not disclose the existence of
23 the pen register or trap and trace device or the existence
24 of the investigation to the listed subscriber, or to any

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1 other person, unless or until otherwise ordered by the
2 court.

4 7-3-805. Assistance in installation and use of a pen
5 register or a trap and trace device.

7 (a) Upon the request of an attorney for the state or
8 an officer of a law enforcement agency authorized to
9 install and use a pen register under this act, a provider
10 of wire or electronic communication service, landlord,
11 custodian or other person shall furnish such investigative
12 or peace officer forthwith all information, facilities, and
13 technical assistance necessary to accomplish the
14 installation of the pen register unobtrusively and with a
15 minimum of interference with the services that the person
16 so ordered by the court accords the party with respect to
17 whom the installation and use is to take place, if such
18 assistance is directed by a court order as provided in W.S.
19 7-3-804(b)(ii).

21 (b) Upon the request of an attorney for the state or
22 an officer of a law enforcement agency authorized to
23 receive the results of a trap and trace device under this
24 act, a provider of a wire or electronic communication

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

18 (c) A provider of a wire or electronic communication
19 service, landlord, custodian or other person who furnishes
20 facilities or technical assistance pursuant to this section
21 shall be reasonably compensated for such reasonable
22 expenses incurred in providing such facilities and
23 assistance.

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

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

14 7-3-806. Emergency pen register and trap and trace
15 device installation.

17 (a) Notwithstanding any other provision of this act,
18 any peace officer specially designated by the governor,
19 attorney general, deputy criminal attorney general, or
20 district attorney in conjunction with the attorney general,
21 who reasonably determines that:

23 (i) An emergency situation exists that involves:

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

4 (B) There are grounds upon which an order
5 could be entered under this act to authorize such
6 installation and use; may have installed and use a pen
7 register or trap and trace device if, within forty-eight
8 (48) hours after the installation has occurred, or begins
9 to occur, an order approving the installation or use is
10 issued in accordance with W.S. 7-3-804.

12 (b) In the absence of an authorizing order, such use
13 shall immediately terminate when the information sought is
14 obtained, when the application for the order is denied or
15 when forty-eight (48) hours have lapsed since the
16 installation of the pen register or trap and trace device,
17 whichever is earlier.

19 (c) The knowing installation or use by any peace
20 officer of a pen register or trap and trace device pursuant
21 to subsection (a) without application for the authorizing
22 order within forty-eight (48) hours of the installation
23 shall constitute a violation of this act.

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1 (d) A provider of a wire or electronic service,
2 landlord, custodian or other person who furnished
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 7-3-807. Reports concerning pen registers and trap
9 and trace devices.

11 The attorney general shall annually report to the joint
12 judiciary interim committee on the number of pen register
13 orders and orders for trap and trace devices applied for
14 under this act. The report shall be provided no later than
15 July 1 of each year.

17 Section 2. W.S. 9-1-603 by creating new subsections
18 (e) and (f) is amended to read:

20 9-1-603. Duties generally; retention of qualified
21 practicing attorneys; matters in which county or state is
22 party or has interest; assistance to county and district
23 attorneys in felony trials; investigative subpoenas.

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1 (e) In any criminal investigation of a violation of
2 the Wyoming Controlled Substances Act of 1971, the attorney
3 general may by subpoena require the production of any
4 records, including books, papers, documents and other
5 tangible things which constitute or contain evidence, which
6 the attorney general finds relevant or material to the
7 controlled substance criminal investigation according to
8 the following conditions:

10 (i) The production of records may be required
11 from any place in this state at any designated place in
12 this state;

14 (ii) A subpoena issued under this subsection may
15 be served by any peace officer of a law enforcement agency
16 as defined by W.S. 7-3-701. Service upon a natural person
17 may be made by personal delivery of the subpoena to him.
18 Service may be made upon a domestic or foreign corporation
19 or upon a partnership or other unincorporated association
20 which is subject to suit under a common name, by delivering
21 the subpoena to an officer, to a managing or general agent,
22 or to any other agent authorized by appointment or by law
23 to receive service of process.

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2 (f) In case of contumacy by, or refusal to obey a
3 subpoena issued to, any person pursuant to subsection (e)
4 of this section, the district court, upon application by
5 the attorney general, may issue to the person an order
6 requiring him to appear before the attorney general or the
7 officer designated by him, there to produce the subpoenaed
8 evidence. Failure to obey the order of the court may be
9 punished by the court as a contempt of court.

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

13 Section 4. This act is effective immediately upon
14 completion of all acts necessary for a bill to become law
15 as provided by Article 4, Section 8 of the Wyoming
16 Constitution.

18 (END)

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