An Act Regarding Service of Criminal Process on Electronic Communication Service Providers and Remote Computing Service Providers

Emergency preamble. Whereas,  acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas,  the business of electronic communication service providers and remote computing service providers is growing rapidly and their involvement with the criminal justice system is increasing; and

Whereas,  for the purposes of the timely administration of criminal justice in this State, amendments to current law are needed immediately to explicitly provide a procedure for the service of criminal process on foreign and domestic entities that are providers of electronic communication service and providers of remote computing service; and

Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

Sec. 1. 5 MRSA §113, sub-§6  is enacted to read:

Sec. 2. 15 MRSA §55,  as amended by PL 1995, c. 388, §3 and affected by §8, is further amended to read:

§ 55. Search warrants; issuance by justice, judge or justice of the peace

A justice of the Superior Court, a judge of the District Court or a justice of the peace shall issue search warrants for any place in the State for such purposes as the Constitution of the United States and the Constitution of Maine permit, including with respect to any violation over which the Passamaquoddy Tribe or , the Penobscot Nation or the Houlton Band of Maliseet Indians exercises exclusive jurisdiction under Title 30, section 6209-A or , 6209-B or 6209-C. The evidence presented to the magistrate in support of the search warrant may consist of affidavits and other evidence under oath or affirmation that is capable of being reduced to a record for purposes of review. The Supreme Judicial Court shall by rule provide the procedure of the application for and issuance of search warrants ; provided that, when . When no procedure is specified by the Supreme Judicial Court, the justice, judge or justice of the peace shall proceed in any reasonable manner that will allow the issuance of a search warrant for any constitutional purpose. A justice, a judge or a justice of the peace shall issue a search warrant for a domestic or foreign entity that is a provider of electronic communication service or a provider of remote computing service in accordance with the provisions of this section and section 56.

Sec. 3. 15 MRSA §56  is enacted to read:

§ 56.  Service of criminal process on providers of electronic communication service or providers of remote computing service

The following provisions apply to a service of criminal process on an electronic communication service provider and a remote computing service provider that are domestic or foreign entities.

Sec. 4. 16 MRSA §642, sub-§1,  as amended by PL 2013, c. 519, §5, is further amended to read:

Sec. 5. 16 MRSA §648,  as amended by PL 2013, c. 519, §6, is further amended to read:

§ 648. Search warrant needed for acquisition of location information

Except as provided in this subchapter, a government entity may not obtain location information without a valid warrant issued by a duly authorized justice, judge or justice of the peace using procedures established pursuant to Title 15, section 55 or 56.

A justice, judge or justice of the peace may issue a search warrant for the location information of an electronic device pursuant to this section for a period of time necessary to achieve the objective of the authorization, but in any case the warrant is not valid for more than 10 14 days after the issuance. A justice, judge or justice of the peace may grant an extension of a warrant upon a finding of continuing probable cause and a finding that the extension is necessary to achieve the objective of the authorization. An extension may not exceed 30 days.

Emergency clause. In view of the emergency cited in the preamble, this legislation takes effect when approved.

SUMMARY

This bill is emergency legislation. Consistent with existing Maine and federal law, this bill makes explicit that a Maine search warrant or a Maine grand jury subpoena may compel production of records by a provider of electronic communication service or remote computing service, even if the provider is outside the State, and establishes the appropriate procedure for service of such legal process. Compelling the production of records will provide access to service provider records that often are critical to the investigation of crime, as criminals commonly use cell phones, computers and the Internet in connection with criminal activities. The federal Stored Communications Act, 18 United States Code, Section 2703(a), (b)(1)(A) and (c)(2) already expressly requires providers of electronic communication service and remote computing service to comply with state grand jury subpoenas for basic subscriber information and state search warrants for content information and location information. Likewise, under Maine law the authority to compel production of basic subscriber information with a grand jury subpoena already exists under the Maine Rules of Unified Criminal Procedure, Rule 17 and Rule 17A, and the authority to compel production of content information and location information with a search warrant already exists under the Maine Revised Statutes, Title 16, sections 642 and 648. This clarification is necessary to resolve uncertainty about the court's authority under Title 15, section 55 to issue search warrants for records in the possession of entities outside of Maine. Such uncertainity may impede the investigation of crimes in Maine and undermine the federal law that requires providers to comply with state search warrants and grand jury subpoenas. Emergency legislation is necessary to immediately clarify the court's authority to review requests for criminal process required for the investigation of alleged criminal activity in Maine.