‘Sec. 1. 16 MRSA c. 3, sub-c. 10 is enacted to read:
SUBCHAPTER 10
PORTABLE ELECTRONIC DEVICE CONTENT INFORMATION
§ 641. Definitions
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Adverse result. "Adverse result" means:
A. Immediate danger of death or serious physical injury;
B. Flight from prosecution;
C. Destruction of or tampering with evidence;
D. Intimidation of a potential witness;
E. Substantially jeopardizing an investigation; or
F. Undue delay of a trial.
2. Content information. "Content information," when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of that communication.
3. Electronic communication service. "Electronic communication service" means a service that provides to users the ability to send or receive spoken or electronic communications.
4. Government entity. "Government entity" means a state or local government agency, including but not limited to a law enforcement entity or any other investigative entity, agency, department, division, bureau, board or commission or an individual acting or purporting to act for or on behalf of a state or local government agency.
5. Owner. "Owner" means the person or entity having the legal title, claim or right to a portable electronic device.
6. Portable electronic device. "Portable electronic device" means a portable device that enables access to, or use of, an electronic communication service or remote computing service.
7. Remote computing service. "Remote computing service" means computer storage or processing services provided by means of an electronic communication service.
8. User. "User" means a person or entity that uses a portable electronic device.
§ 642. Authority to obtain and disclose content information
1. Authority to obtain. A government entity may obtain portable electronic device content information only in accordance with a valid warrant issued by a duly authorized judge or justice using procedures established pursuant to Title 15, section 55 or as otherwise provided in this subchapter.
2. Authority to disclose. A provider of an electronic communication service may disclose portable electronic device content information to a government entity only pursuant to a warrant issued by a duly authorized judge or justice or as otherwise provided in this subchapter.
§ 643. Notice
Notice must be given to the owner or user of a portable electronic device whose content information was obtained by a government entity.
1. Timing and content of notice. Unless delayed notice is ordered under subsection 2, the government entity shall provide notice to the owner or user that content information was obtained by the government entity from that owner's or user's portable electronic device within 10 days of obtaining the content information. The notice must be made by service or delivered by registered or first-class mail, e-mail or any other means reasonably calculated to be effective as specified by the court issuing the warrant. The notice must contain the following information:
A. The nature of the law enforcement inquiry, with reasonable specificity;
B. The content information of the owner or user that was supplied to or requested by the government entity and the date on which it was provided or requested;
C. If content information was obtained from a provider of an electronic communication service or other 3rd party, the identity of the provider of the electronic communication service or the 3rd party from whom the information was obtained; and
D. Whether the notification was delayed pursuant to subsection 2 and, if so, the court that granted the delay and the reasons for granting the delay.
2. Delay of notification. A government entity acting under section 642 may include in the application for a warrant a request for an order to delay the notification required under this section for a period not to exceed 90 days. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result. Upon expiration of the period of delay granted under this subsection and any extension granted under subsection 4, the government entity shall provide the owner or user with a copy of the warrant together with a notice pursuant to subsection 1.
3. Preclusion of notice to owner or user subject to warrant for content information. A government entity acting under section 642 may include in its application for a warrant a request for an order directing a provider of an electronic communication service to which a warrant is directed not to notify any other person of the existence of the warrant for a period of not more than 90 days. The court shall issue the order if the court determines that there is reason to believe that notification of the existence of the warrant may have an adverse result.
4. Extension. The court, upon application, may grant one or more extensions of orders granted under subsection 2 or 3 for up to one additional year.
§ 644. Exceptions
1. Consent of owner or user. When disclosure of portable electronic device content information is not prohibited by federal law, a government entity may obtain the information without a warrant with the informed, affirmative consent of the owner or user of the portable electronic device concerned, except when the device is known or believed by the owner or user to be in the possession of a 3rd party known to the owner or user.
2. Emergency. When a government entity cannot, with due diligence, obtain a warrant in time to address an emergency that involves or is believed to involve an imminent threat to life or safety, a government entity may obtain the content information from a portable electronic device without a warrant, and a provider of an electronic communication service may disclose such information to the requesting government entity without a warrant.
§ 645. Conditions of use of content information
1. Use of content information obtained in violation of this subchapter not admissible. Except as proof of a violation of this subchapter, evidence obtained in violation of this subchapter is not admissible in a criminal, civil, administrative or other proceeding.
2. Conditions of use of content information in proceeding. Portable electronic device content information obtained pursuant to this subchapter or evidence derived from that content information may be received in evidence or otherwise disclosed in a trial, hearing or other proceeding only if each party, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the warrant and accompanying application under which the content information was obtained.
3. Ten-day requirement; exception. The 10-day requirement under subsection 2 may be waived if a judge or justice makes a finding that it is not possible to provide a party with the warrant and accompanying application 10 days prior to a trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the content information.
§ 646. Violations; private actions; enforcement
1. Civil suit authorized. A person damaged as a result of a violation of this subchapter has a cause of action in Superior Court against the provider of an electronic communication service that disclosed portable electronic device content information in violation of this subchapter, and, in addition to actual damages, costs and attorney's fees, the court may award statutory damages in an amount not to exceed $5,000. A suit authorized under this section may not be maintained by any person who has sought or is seeking civil damages under federal law for the same disclosure.
2. Exceptions. No cause of action may be brought against any provider of an electronic communication service or its officers, employees, agents or other specified persons for providing any information, facilities or assistance to a law enforcement officer or agency in response to a warrant, whether properly issued or not, or with the affirmative consent of the apparent owner or user of the portable electronic device or in response to an emergency request made by a government entity claiming authority to make the request under this subchapter.
3. Limitation. A civil action under this subchapter may not be commenced later than 2 years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.
4. Injunctive relief. A person damaged as a result of a violation of this subchapter has a cause of action in court against a government entity that fails to comply with the provisions of this subchapter, and the court may award injunctive relief.
5. Attorney General. The Attorney General may enforce the provisions of this subchapter.
Sec. 2. Appropriations and allocations. The following appropriations and allocations are made.
ATTORNEY GENERAL, DEPARTMENT OF THE
Administration - Attorney General 0310
Initiative: Provides funds for 2 Research Assistant positions and related costs to manage the notification provisions of this Act.
| GENERAL FUND | 2013-14 | 2014-15 |
|
POSITIONS - LEGISLATIVE COUNT
|
2.000 | 2.000 |
|
Personal Services
|
$92,542 | $128,851 |
|
All Other
|
$7,801 | $5,068 |
 |
|
|
| GENERAL FUND TOTAL | $100,343 | $133,919 |