SF0068 - Communication interception.
2001 |
State of Wyoming |
01LSO-0218 |
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7-3-601 through 7-3-611 are repealed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) "Peace officer" means
as defined in W.S.
18 7-2-101 and includes any law enforcement
officer with
19 federal criminal enforcement jurisdiction;
20
21 (ix) "Provider of wire or
electronic
22 communication service" means any person
who provides a
23 service which consists of communications by
wire, radio,
24 electronic, laser or other transmission of
energy;
Page 4
1
2 (x) "Wire
communication" means any aural
3
transfer made in whole or in part through the use of
4
facilities for the transmission of communications by the
5 aid
of wire, cable or other like connection, including the
6 use
of such connection in a switching station, between the
7
point of origin and the point of reception, furnished or
8
operated by any person engaged in providing or operating
9
such facilities for the transmission of intrastate,
10 interstate or foreign communications, and
includes any
11 electronic storage of such communication,
but the term does
12 not include the radio portion of a cordless
telephone
13 communication that is transmitted between
the cordless
14 telephone handset and the base unit;
15
16 (xi) "This act" means W.S. 7-3-601
through
17 7-3-611.
18
19
7-3-602. Prohibition
against interception or
20 disclosure of wire, oral or electronic communications;
21 exceptions; penalties.
22
23 (a) Except
as provided in subsection (b) of this
24 section, no person shall willfully:
Page 5
1
2 (i) Intercept
any wire, oral or electronic
3
communication;
4
5 (ii) Disclose to another person the
contents of
6 any
wire, oral or electronic communication, knowing or
7
having reason to know that the information was obtained
8
through the interception of a wire, oral or electronic
9
communication in violation of this section;
10
11 (iii) Use the contents of any wire,
oral or
12 electronic communication knowing or having
reason to know
13 that the information was obtained through
the interception
14 of a wire, oral or electronic communication
in violation of
15 this section.
16
17 (b) Nothing
in subsection (a) of this section
18 prohibits:
19
20 (i) An officer, employee or agent of
a wire or
21 electronic communication service whose
facilities are used
22 in the transmission of a wire communication
from
23 intercepting, disclosing or using a wire or
electronic
24 communication intercepted in the normal
course of that
Page 6
1
person's employment if the interception is made only for
2
mechanical or service quality checks or to protect the
3
property of the provider of wire or electronic
4
communications service;
5
6 (ii) An officer, employee or agent of
any
7
provider of wire or electronic communications service from
8
providing information, facilities or technical assistance
9 to
a peace officer who is authorized pursuant to this act
10 to intercept a wire, oral or electronic
communication;
11
12 (iii) An officer, employee or agent of
the
13 federal communications commission, in the
normal course of
14 his employment and in discharge of the
monitoring
15 responsibilities exercised by the commission
in the
16 enforcement of 47 U.S.C. Chapter 5 from
intercepting a wire
17 or electronic communication, or oral
communication
18 transmitted by radio, or disclosing or using
the
19 information thereby obtained;
20
21 (iv) Any person from intercepting an
oral, wire
22 or electronic communication where the person
is a party to
23 the communication or where one (1) of the
parties to the
24 communication has given prior consent to the
interception
Page 7
1
unless the communication is intercepted for the purpose of
2
committing any criminal or tortious act;
3
4 (v) A
peace officer from intercepting, using or
5
disclosing to another peace officer in the course of his
6
official duties any wire, oral or electronic communication
7
pursuant to an order permitting the interception under this
8
act;
9
10 (vi) An employee of a telephone
company from
11 intercepting a wire communication for the
sole purpose of
12 tracing the origin of the communication upon
request by the
13 recipient of the communication who alleges
that the
14 communication is obscene, harassing or
threatening in
15 nature. The person conducting the
interception shall notify
16 local law enforcement authorities of the
interception
17 within forty-eight (48) hours;
18
19 (vii) An employee of a licensed
ambulance
20 service, a fire station employing
firefighters, a public
21 utility, any other entity with a published
emergency
22 telephone number or an agency operating an
emergency
23 telephone number system from intercepting
and recording
24 incoming wire communications. A public
utility may
Page 8
1
intercept and record incoming wire communications on
2
published emergency telephone numbers only; or
3
4 (viii) Any person from intercepting any
5
communication broadcast by any radio transmitting device
6
unless the transmitting device is being used to intercept
7
communications in violation of this section.
8
9 (c) Any person who violates this
section is guilty of
10 a felony punishable by a fine of not more than one
11 thousand dollars ($1,000.00), imprisonment
for not more
12 than five (5) years, or both.
13
14
7-3-603. Prohibition
against manufacture and
15 possession of wire, oral or electronic communication
16 intercepting devices; exceptions; penalties.
17
18 (a) Except
as provided in subsection (b) of this
19 section, no person shall willfully
manufacture, assemble,
20 possess, sell or offer for sale any
electronic, mechanical
21 or other device, with intent to intercept
wire, oral or
22 electronic communications in violation of
this act.
23
Page 9
1 (b) Nothing in subsection (a) of this
section
2
prohibits an officer, agent, employee of or person under
3
contract with or bidding upon contract with a provider of
4
wire or electronic communication services, the United
5
States, a state or a political subdivision thereof, in the
6
normal course of the activities of the United States, a
7
state or a political subdivision thereof, to send through
8 the
mail, send or carry in interstate or foreign commerce,
9 or
manufacture, assemble, possess or sell any electronic,
10 mechanical or other device, knowing or
having reason to
11 know that the design of the device renders
it primarily
12 useful for the purpose of the surreptitious
interception of
13 wire, oral or electronic communications.
14
15 (c) Any
person who violates this section is guilty of
16 a felony punishable as provided in W.S. 7-3-602(c).
17
18
7-3-604. Seizure and
forfeiture of wire or oral
19 communication intercepting devices.
20
21 Any electronic, mechanical or other device manufactured,
22 assembled, used, sold or possessed in
violation of this act
23 may be seized by any peace officer upon
process issued by
24 any district court or district court
commissioner having
Page 10
1 jurisdiction over the
property or without process if the
2
seizure is incident to an arrest or a search under a search
3
warrant or if the peace officer seizing the device has
4
probable cause to believe the property was used or is
5
intended to be used in violation of this act. Devices
6
subject to seizure under this act are contraband subject to
7 forfeiture
in accordance with law.
8
9 7-3-605. Authorization for interception of wire, oral
10 or electronic communications.
11
12 (a) The
governor, the attorney general or the
13 district attorney within whose jurisdiction
the order is
14 sought in conjunction with the attorney
general, may
15 authorize an application to a judge of
competent
16 jurisdiction for an order authorizing the
interception of
17 wire, oral or electronic communications by
the Wyoming
18 division of criminal investigation or any
law enforcement
19 agency of the state having responsibility
for investigation
20 of the offense for which the application is
made, if the
21 interception may provide evidence of an
attempt to commit,
22 conspiracy to commit, solicitation to commit
or the
23 commission of any of the following felony
offenses or
24 comparable crimes in any other jurisdiction:
Page 11
1
2 (i) Violations
of the Wyoming Controlled
3
Substances Act of 1971;
4
5 (ii) Any of the following, if incident
to or
6
discovered during investigation of a violation of the
7
Wyoming Controlled Substances Act of 1971:
8
9 (A) Murder as defined in W.S. 6-2-101
and
10 6-2-104;
11
12 (B) Kidnapping
or related felony offense as
13 defined in W.S. 6-2-201, 6-2-202 and 6-2-204;
14
15 (C) First
or second degree sexual assault
16 as defined in W.S. 6-2-302 and 6-2-303;
17
18 (D) Robbery as defined in W.S. 6-2-401;
19
20 (E) Blackmail as defined in W.S. 6-2-402;
21
22 (F) Burglary as defined by W.S. 6-3-301; or
23
Page 12
1 (G) Felony larceny or related felony
2
offense defined in W.S. 6-3-401 through 6-3-410.
3
4 7-3-606. Procedure for interception of wire, oral or
5 electronic
communications.
6
7 (a) Each authorized application for
an order
8
permitting the interception of wire, oral or electronic
9
communications shall be made in writing upon oath or
10 affirmation to a judge and shall state the
applicant's
11 authority under W.S. 7-3-605(a) to make the
application.
12 Each application shall include the following
information:
13
14 (i) The identity of the peace officer;
15
16 (ii) A full and complete statement of
the facts
17 and circumstances relied upon by the
applicant to justify
18 his belief that an order should be issued,
including:
19
20 (A) Specific
facts concerning the
21 particular offense that is being
investigated;
22
Page 13
1 (B) A particular description of the
nature
2 and
location of the equipment from which, or the place
3
where, the communication is to be intercepted;
4
5 (C) A particular description of the
type of
6
communication sought to be intercepted;
7
8 (D) The identity of the person or
persons,
9 if
known, who are suspected of committing the offense and
10 whose communications are to be intercepted.
11
12 (iii) A complete statement as to
whether or not
13 other investigative procedures have been
tried and have
14 failed, or why they reasonably appear to be
unlikely to
15 succeed or would be too dangerous;
16
17 (iv) A statement of the required
duration of the
18 interception. If the nature of the investigation will
19 require that the interception not
automatically terminate
20 when the described type of communication has
been first
21 obtained, the application shall state facts
sufficient to
22 establish probable cause to believe that
additional
23 communications of the same type will occur
after the
24 initial interception;
Page 14
1
2 (v) A
full and complete statement by the
3
applicant concerning all previous applications known to
4
have been made to any judge:
5
6 (A) For permission to intercept wire,
oral
7 or
electronic communications involving any of the same
8
persons, equipment or places specified in the application;
9 and
10
11 (B) Action
taken by the judges on each
12 previous application.
13
14 (vi) If the application is for
extension of an
15 order, a complete statement shall be made
setting forth the
16 results thus far obtained from the
interception or a
17 reasonable explanation of the failure to
obtain any
18 results.
19
20 (b) The
judge may require the applicant to furnish
21 additional testimony or documentary evidence
in support of
22 the application.
23
Page 15
1 (c) Upon an application, the judge
may issue an ex
2
parte order, as requested or modified, permitting
3
interception of wire, oral or electronic communications
4 within
the territorial jurisdiction of the court in which
5 the
judge is sitting, and outside that jurisdiction but
6
within the state of Wyoming in the case of a mobile
7
interception device authorized by a district court within
8
such district, if the judge determines on the basis of the
9
facts submitted by the applicant that:
10
11 (i) There is probable cause for
belief that the
12 named person is committing or has committed
any of the
13 offenses enumerated in W.S. 7-3-605;
14
15 (ii) There is probable cause for
belief that
16 particular communications concerning those
offenses will be
17 intercepted;
18
19 (iii) Normal investigative procedures
have been
20 tried and have failed, or reasonably appear
to be unlikely
21 to succeed or would be too dangerous;
22
23 (iv) There is probable cause for
belief that the
24 equipment from which, or the place where,
the wire, oral or
Page 16
1
electronic communications are to be intercepted is or is
2
about to be used in connection with any of the offenses
3
enumerated in W.S. 7-3-605 or is leased to, listed in the
4
name of or used by the person suspected in the commission
5 of
any enumerated offense.
6
7 (d) Each order permitting
interception of wire, oral
8 or
electronic communications shall specify:
9
10 (i) The nature and location of the
person or
11 persons, if known, whose communications are
to be
12 intercepted;
13
14 (ii) The nature and location of the
15 communications equipment or place where the
interception is
16 to occur;
17
18 (iii) A particular description of the
type of
19 communication sought to be intercepted and a
statement of
20 the particular offense or offenses to which
it relates;
21
22 (iv) The period of time during which
an
23 interception is authorized including a
statement as to
24 whether or not the interception shall
automatically
Page 17
1
terminate when the described communication is first
2
obtained;
3
4 (v) The
identity of the agency authorized to
5
intercept the communications and of the person authorizing
6 the
application.
7
8 (e) No order entered under this
section may permit
9 the
interception of any wire, oral or electronic
10 communication for any period longer than is
necessary to
11 achieve the objective of the authorization,
or in any event
12 longer than thirty (30) days. The thirty
(30) day period
13 provided by this subsection begins on the
earlier of the
14 day on which the peace officer first begins
to conduct an
15 interception under the order or ten (10)
days after the
16 order is entered.
17
18 (f) Extensions
of an order may be granted upon an
19 application for extension made in accordance
with
20 subsection (a) of this section and upon the
findings
21 required by subsection (c) of this section.
The period of
22 the extension shall be no longer than
necessary to achieve
23 the objective of the extension and in any
event no longer
24 than thirty (30) days.
Page 18
1
2 (g) Every order and extension thereof
shall contain a
3
provision that the permission to intercept shall be
4
executed as soon as practicable, and that the execution of
5 the
permission shall be conducted in such a way as to
6
minimize the interception. Every order or extension thereof
7
shall also provide that the interception terminate upon
8
attainment of the objective, or in any event in thirty (30)
9
days.
10
11 (h) The
order or extension permitting interception
12 may require reports to be made to the judge
issuing the
13 order, stating the progress which has been
made toward
14 achievement of the authorized objective and
the need for
15 continued interception.
16
17 (j) The
contents of any wire, oral or electronic
18 communication intercepted shall, if
possible, be recorded
19 on tape, wire or other comparable device.
The recording
20 shall be performed to protect it from
editing or other
21 alterations. Immediately upon expiration of
the period of
22 the order, or extension thereof, the
recording shall be
23 submitted to the judge issuing the order and
shall be
24 sealed under his directions. A recording
shall not be
Page 19
1
destroyed except upon an order of the judge, and in any
2
event shall be kept for five (5) years. Duplicate
3
recordings may be made for use or disclosure pursuant to
4 the
provisions of this section. The presence of the seal
5
provided for by this subsection, or a satisfactory
6
explanation for its absence, is a prerequisite for the use
7 or
disclosure of the contents of any wire or oral
8
communication or evidence derived therefrom.
9
10 (k) Applications
made and orders granted under this
11 section 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 five (5) years. Any
information
18 obtained pursuant to a court order
permitting interception
19 of wire or oral communications shall not be
used, published
20 or divulged except in accordance with the
provisions of
21 this act.
22
23 (m) Within
a reasonable time, but not later than
24 ninety (90) days after the denial of an
application or the
Page 20
1
termination of the period of an order authorizing
2
interception or extension thereof, the judge shall cause to
3 be
served upon each person named in the application and any
4
other person the judge determines as in the interest of
5
justice, notice of the following:
6
7 (i) That
an order or application has been
8
entered under this section;
9
10 (ii) The date of the entry and the
period of
11 permitted interception or the denial of the
application;
12 and
13
14 (iii) Whether wire, oral or electronic
15 communications were or were not intercepted.
16
17 (n) The
judge, upon the filing of a motion, may, in
18 his discretion, make available to the person
or his counsel
19 for inspection any portion of the
intercepted
20 communications, applications and orders as
the judge
21 determines to be in the interest of justice.
On an ex parte
22 showing of good cause to a judge, the
service of the matter
23 required by subsection (m) of this section
may be
24 postponed.
Page 21
1
2 (o) The contents of any wire, oral or
electronic
3
communication intercepted pursuant to this section or
4
evidence derived from that communication shall not be
5
received in evidence or otherwise disclosed in any trial,
6
hearing or other proceeding unless the party offering the
7
evidence, not less than twenty (20) days before the trial,
8
hearing or proceeding, gives notice to the court or hearing
9
officer and all other parties. The court may then order
10 disclosure of the court order and
accompanying application.
11 If the order of interception and
accompanying application
12 has previously been disclosed, the offering
party may
13 furnish all other parties with the order of
interception
14 and accompanying application without further
order of the
15 court or hearing officer upon proper
notice. This twenty
16 (20) day period may be waived by the court
or hearing
17 officer if it finds that it was not possible
to furnish the
18 party with the information twenty (20) days
before the
19 trial, hearing or proceeding and that no
party will be
20 prejudiced by the delay in receiving the
information.
21
22 (p) The
contents of any intercepted wire, oral or
23 electronic communication or evidence derived
therefrom
24 shall not be admitted as evidence in any
trial, hearing or
Page 22
1
other proceeding in this state unless the interception was
2
performed in accordance with this act.
3
4 (q) No otherwise privileged wire,
oral or electronic
5
communication intercepted shall lose its privileged
6
character, unless the communications are in furtherance of
7 a
criminal or tortious act in violation of the laws of the
8
United States or this state.
9
10 (r) When
a peace officer, while engaged in
11 intercepting wire, oral or electronic
communications
12 relating to an offense specified in the
order permitting
13 interception, intercepts wire, oral or
electronic
14 communications relating to an offense other
than those
15 specified in the order, the contents
thereof, and evidence
16 derived therefrom, may be disclosed or used
only if the
17 offense constitutes a felony under the laws
of the United
18 States or this state. If the communication
concerns an
19 enumerated offense listed in W.S. 7-3-605,
the agency
20 executing the order of interception shall
apply to the
21 issuing court for an expansion of the order
of interception
22 pursuant to paragraph (a)(ii) of this
section. The
23 application shall be made as soon as
practicable.
24
Page 23
1 (s) In the event an intercepted
communication is in a
2
code or a foreign language, and an expert in that code or
3
foreign language is not reasonably available during the
4
interception period, any minimization required under this
5
section shall be accomplished as soon as practicable after
6 the
interception.
7
8 7-3-607. Order directing others to furnish
9 assistance.
10
11 An order permitting the interception of a wire, oral or
12 electronic communication shall, upon request
of the
13 applicant, direct that a provider of wire or
electronic
14 communication service, landlord, custodian
or other person
15 shall immediately furnish the applicant all
information,
16 facilities and technical assistance
necessary to accomplish
17 the interception unobtrusively and with a
minimum of
18 interference with the services that the
service provider,
19 landlord, custodian or other person is
supplying the person
20 whose communication is to be intercepted.
Any provider of
21 wire or electronic communication service,
landlord,
22 custodian or other person furnishing these
facilities or
23 technical assistance shall be compensated
therefor by the
Page 24
1 applicant for reasonable
expenses incurred in providing the
2
facilities or assistance.
3
4 7-3-608. Information furnished to attorney general by
5 executing agency;
report to legislature.
6
7 (a) Upon final execution of an order
of interception,
8 the
executing agency shall furnish the following
9 information
within ten (10) working days to the attorney
10 general:
11
12 (i) Information as to the number of
orders,
13 extensions and expansions made by the court;
14
15 (ii) Each offense specified in the application;
16
17 (iii) The nature of the facilities from
which or
18 the place where communications were to be
intercepted;
19
20 (iv) A general description of the
interceptions
21 made under any order or extension, including
the nature and
22 frequency of other communications
intercepted, the number
23 of persons whose communications were
intercepted and the
Page 25
1
nature, amount and cost of the manpower and other resources
2
used in the interceptions; and
3
4 (v) The
number of arrests resulting from
5
interceptions made under the order or extension and the
6
offenses for which arrests were made.
7
8 (b) The
attorney general shall report to the joint
9 judiciary interim committee no later than
July 1 of each
10 year. The report shall contain the information
required by
11 subsection (a) of this
section.
12
13
7-3-609. Recovery of
civil damages for violations;
14
good faith defense.
15
16 (a) Any
person whose wire, oral or electronic
17 communication is intercepted, disclosed or
used in
18 violation of this act may recover damages
against any
19 person who intercepts, discloses, uses or
procures any
20 other person to intercept, disclose or use
the
21 communications as follows:
22
Page 26
1 (i) Actual
damages but not less than one
2
thousand dollars ($1,000.00) a day for each day of
3
violation;
4
5 (ii) Punitive damages; and
6
7 (iii) Reasonable attorney's fees and
other
8
litigation costs reasonably incurred.
9
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.
13
14 7-3-610. Exclusivity of provisions.
15
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.
21
22
7-3-611. Reports by attorney
general and state
23 courts.
24
Page 27
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.
4
5 Section 2. This act is effective immediately upon
6
completion of all acts necessary for a bill to become law
7 as
provided by Article 4, Section 8 of the Wyoming
8
Constitution.
9
10 (END)
Page 28