Sec. 54-47aa. Ex parte order to compel disclosure of or direct application to carrier or provider for certain telephone and Internet records.

(a) For the purposes of this section:

(1) “Basic subscriber information” means: (A) Name, (B) address, (C) local and long distance telephone connection records or records of session times and durations, (D) length of service, including start date, and types of services utilized, (E) telephone or instrument number or other subscriber number or identity, including any assigned Internet protocol address, and (F) means and source of payment for such service, including any credit card or bank account number;

(2) “Call-identifying information” means dialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customer, excluding geo-location data, by means of any equipment, facility or service of a telecommunications carrier;

(3) “Cell site simulator device” means a device that transmits or receives radio waves for the purpose of conducting one or more of the following operations: (A) Identifying, locating or tracking the movements of a communications device, (B) intercepting, obtaining, accessing or forwarding the communications, stored data or metadata of a communications device, (C) affecting the hardware or software operations or functions of a communications device, (D) forcing transmissions from, or connections to, a communications device, (E) denying a communications device access to other communications devices, communications protocols or services, or (F) spoofing or simulating a communications device, cell tower, cell site or service. “Cell site simulator device” includes, but is not limited to, an international mobile subscriber identity catcher or other invasive cell phone or telephone surveillance or eavesdropping device that mimics a cell phone tower and sends out signals to cause cell phones in the area to transmit their locations, identifying information and communications content, or a passive interception device or digital analyzer that does not send signals to a communications device under surveillance. “Cell site simulator device” does not include any device used or installed by an electric distribution company, as defined in section 16-1, solely to the extent that such device is used by the electric distribution company to measure electrical usage, to provide services to customers or to operate the electric grid;

(4) “Electronic communication service” means “electronic communication service” as defined in 18 USC 2510, as amended from time to time;

(5) “Exigent circumstance” means an emergency involving danger of serious physical injury to or death of a person;

(6) “Geo-location data” means information concerning the location of an electronic device, including the real-time and historical location of the device, that, in whole or in part, is generated by, derived from or obtained by the operation of an electronic device, including, but not limited to, a cellular telephone surveillance device and a cell site simulator device;

(7) “Law enforcement official” means the Chief State's Attorney, a state's attorney, an inspector with the Division of Criminal Justice, a sworn member of the Division of State Police within the Department of Emergency Services and Public Protection or a sworn member of an organized local police department;

(8) “Remote computing service” means “remote computing service” as defined in section 18 USC 2711, as amended from time to time; and

(9) “Telecommunications carrier” means “telecommunications carrier” as defined in 47 USC 1001, as amended from time to time.

(b) A law enforcement official may apply for an ex parte order from a judge of the Superior Court to compel (1) a telecommunications carrier to disclose call-identifying information pertaining to a subscriber or customer, (2) a provider of electronic communication service or remote computing service to disclose basic subscriber information pertaining to a subscriber or customer, or (3) a telecommunications carrier or a provider of electronic communication service or remote computing service to disclose the content of a subscriber's or customer's communications or geo-location data associated with a subscriber's or customer's call-identifying information. In the case of an application for an order to compel disclosure under subdivision (1) or (2) of this subsection, the judge shall grant such order if the law enforcement official swears under oath to a statement of a reasonable and articulable suspicion that a crime has been or is being committed and such call-identifying or basic subscriber information is relevant and material to an ongoing criminal investigation. In the case of an application for an order to compel disclosure under subdivision (3) of this subsection, if the judge makes a finding of probable cause to believe that a crime has been or is being committed and the content of such subscriber's or customer's communications or the geo-location data associated with such subscriber's or customer's call-identifying information is relevant and material to an ongoing criminal investigation, the judge shall grant such order authorizing the disclosure of such information, content or geo-location data. Any order entered pursuant to this subsection shall state upon its face the case number assigned to such investigation, the date and time of issuance and the name of the judge authorizing the order. The law enforcement official shall have any ex parte order issued pursuant to this subsection signed by the authorizing judge within forty-eight hours or not later than the next business day, whichever is earlier. No order pursuant to this subsection shall authorize the disclosure of any such information, content or data for a period in excess of fourteen days.

(c) (1) Except as provided in subdivision (2) of this subsection, a law enforcement official shall not install or otherwise use a cell site simulator device to obtain geo-location data unless such official has obtained an order from a judge of the Superior Court, pursuant to this subsection, that permits such installation or use. A law enforcement official may apply for an ex parte order from a judge of the Superior Court allowing the installation and use of a cell site simulator device to obtain geo-location data. The judge shall grant such order if the law enforcement official swears in a statement under oath that there is probable cause to believe that a crime has been or is being committed and the geo-location data associated with a subscriber's or customer's call-identifying information is relevant and material to an ongoing criminal investigation, in which case such order shall authorize the installation or use of a cell site simulator device to obtain geo-location data. Any order entered pursuant to this subdivision shall state upon its face the case number assigned to such investigation, the date and time of issuance of the order and the name of the judge authorizing the order. The law enforcement official shall have any ex parte order issued pursuant to this subdivision signed by the authorizing judge within forty-eight hours or not later than the next business day, whichever is earlier. No order issued pursuant to this subdivision shall authorize the installation of cell site simulator device to obtain geo-location data for a period in excess of fourteen days.

(2) A law enforcement official may install and use a cell site simulator device to obtain geo-location data without an ex parte order for a period of time not exceeding forty-eight hours when (A) facts exist upon which to base a belief that the geo-location data is relevant and material to an ongoing criminal investigation; (B) the law enforcement official believes that exigent circumstances exist; and (C) the facts support the law enforcement official's belief that exigent circumstances exist. If the law enforcement official seeks to install and use a cell site simulator device to obtain geo-location data relating to the same criminal investigation for a period of time exceeding forty-eight hours, such official shall apply for an ex parte order in accordance with the provisions of subdivision (1) of this subsection. In addition, the law enforcement official shall file as part of the application, a statement under oath attesting to the facts and beliefs concerning the exigent circumstances that existed and supported the use of the cell site simulator device for a period of time not exceeding forty-eight hours. The law enforcement official shall include in such statement the date and time of use of the cell site simulator device.

(d) A law enforcement official may apply directly to a telecommunications carrier or provider of electronic communication service or remote computing service for production of geo-location data for a period not in excess of forty-eight hours, including real-time or historical geo-location data, or any combination of such data, pertaining to an identified subscriber or customer. The telecommunications carrier or provider of electronic telecommunication service or remote computing service may provide the requested geo-location data upon the applicant stating under oath: (1) That facts exist upon which to base a belief that the data sought is relevant and material to an ongoing criminal investigation; (2) a belief that exigent circumstances exist; and (3) the facts supporting the belief that exigent circumstances exist. Any subsequent application for information from the same telecommunication carrier or provider of electronic communication service or remote computing service for production of geo-location data in connection with the same investigation shall be made pursuant to subsection (b) of this section.

(e) Whenever an order is issued pursuant to subsection (b) of this section, a telecommunications carrier shall disclose to the appropriate law enforcement official call-identifying information or the content of a subscriber's or customer's communications or geo-location data, and a provider of electronic communication service or remote computing service shall disclose to the appropriate law enforcement official basic subscriber information or the content of a subscriber's or customer's communications or geo-location data, as directed by the order.

(f) Not later than forty-eight hours after the issuance of an order pursuant to subsection (b) of this section, the law enforcement official shall mail notice of the issuance of such order to the subscriber or customer whose call-identifying information, communications data or geo-location data or basic subscriber information is the subject of such order, except that such notification may be delayed for a period of up to ninety days upon the execution of a written certification of such official to the judge who authorized the order that there is reason to believe that notification of the existence of the order may result in (1) endangering the life or physical safety of an individual, (2) flight from prosecution, (3) destruction of or tampering with evidence, (4) intimidation of potential witnesses, or (5) otherwise seriously jeopardizing the investigation. The law enforcement official shall maintain a true copy of such certification. During such ninety-day period, the law enforcement official may request the court to extend such period of delayed notification. Such period may be extended beyond ninety days only upon approval of the court. The applicant shall file a copy of the notice with the clerk of the court for the geographical area within which any person who may be arrested in connection with or subsequent to the execution of the order would be presented, and such notice shall include the case number assigned to such investigation pursuant to subsection (b) of this section. If information is provided in response to the order, the applicant shall, not later than ten days after receiving such information, file with the clerk a return containing an inventory of the information received. Such return and inventory shall include the case number assigned to such investigation pursuant to subsection (b) of this section, and such return and inventory shall remain sealed until the copy of the notice is filed with the clerk pursuant to this section. If a judge finds there is a significant likelihood that such notification would seriously jeopardize the investigation and issues an order authorizing delayed notification under this subsection, the telecommunications carrier or provider of electronic communication service or remote computing service from whom the call-identifying information, communications data, geo-location data or basic subscriber information is sought shall not notify any person, other than legal counsel for the telecommunications carrier or provider of electronic communication service or remote computing service and the law enforcement official that requested the ex parte order, of the existence of the ex parte order. Any information provided in response to the court order shall be disclosed to the defense counsel.

(g) A telecommunications carrier or provider of electronic communication service or remote computing service that provides information pursuant to an order issued pursuant to subsection (b) of this section or pursuant to an application made pursuant to subsection (d) of this section shall be compensated for the reasonable expenses incurred in providing such information.

(h) Any telecommunications carrier or provider of electronic communication service or remote computing service that provides information pursuant to an order issued pursuant to subsection (b) of this section or an application made pursuant to subsection (d) of this section shall be afforded the legal protections provided under 18 USC 3124, as amended from time to time, with regard to such actions.

(i) No information obtained pursuant to subsections (b) to (d), inclusive, of this section shall be retained for a period in excess of fourteen days, unless such information relates to an ongoing criminal investigation. Any information provided pursuant to subsections (b) to (d), inclusive, of this section shall be disclosed to the defense counsel.

(j) Not later than January fifteenth of each year, each law enforcement official shall report to the Chief State's Attorney the information required by this subsection with respect to each order issued pursuant to subsections (b) and (c) of this section and each application made pursuant to subsection (d) of this section in the preceding calendar year. The Chief State's Attorney shall, based upon the reports filed by each law enforcement official and not later than January thirty-first of each year, submit a report, in accordance with the provisions of section 11-4a, to the joint standing committee of the General Assembly having cognizance of matters relating to criminal law and procedure concerning orders issued pursuant to subsections (b) and (c) of this section and applications made pursuant to subsection (d) of this section in the preceding calendar year. The report shall include the following information: (1) The number of orders issued pursuant to subsections (b) and (c) of this subsection and the number of applications submitted to telecommunications carriers or providers of electronic communication service or remote computing service pursuant to subsection (d) of this section, (2) whether the order was directed to a telecommunications carrier, provider of electronic communication service or provider of remote computing service, (3) whether the information sought was call-identifying information or basic subscriber information, (4) the statutory offense or offenses that were the subject of the investigation, (5) the number of notifications that were delayed pursuant to subsection (f) of this section, and the reason for such delayed notification, (6) the number of motions to vacate an order that were filed, and the number of motions granted or denied, (7) the number of investigations concluded and the final result of such investigations, and (8) the status of any criminal prosecution resulting from the investigation.

(P.A. 05-182, S. 1, 2; P.A. 11-51, S. 134; P.A. 16-148, S. 1; P.A. 17-216, S. 4; 17-221, S. 2.)

History: Pursuant to P.A. 11-51, “Department of Public Safety” was changed editorially by the Revisors to “Department of Emergency Services and Public Protection” in Subsec. (a)(4), effective July 1, 2011; P.A. 16-148 amended Subsec. (a) by redefining “call-identifying information” in Subdiv. (2), adding new Subdiv. (4) defining “exigent circumstance”, adding new Subdiv. (5) defining “geo-location data” and redesignating existing Subdivs. (4) to (6) as Subdivs. (6) to (8), amended Subsec. (b) by replacing “may request an ex parte order” with “may apply for an ex parte order”, adding Subdiv. (3) re disclosure of content of subscriber's or customer's communications or geo-location data, replacing “law enforcement official states a reasonable and articulable suspicion” with “law enforcement official swears under oath to a statement of (A) a reasonable and articulable suspicion”, deleting reference to exigent circumstances, adding provisions re disclosure of content of communication or geo-location data not authorized, adding Subpara. (B) re probable cause to believe that crime has been or is being committed and content of subscriber's or customer's communications or geo-location data is relevant and material to ongoing criminal investigation, and adding provision re no order to authorize disclosure of information, content or data for a period in excess of 14 days, added new Subsec. (c) re law enforcement official may apply directly to telecommunications carrier or provider of electronic communication service or remote computing service for production of geo-location data, redesignated existing Subsecs. (c) to (f) as Subsecs. (d) to (g), amended redesignated Subsec. (e) by adding provisions re applicant to file copy of notice with clerk of court that issued order and re disclosure of information to defense counsel, amended redesignated Subsecs. (f) and (g) by adding references to application made pursuant to Subsec. (c), added Subsec. (h) re retention of information and disclosure of information to defense counsel, redesignated existing Subsec. (g) as Subsec. (i) and amended same by adding references to application made pursuant to Subsec. (c) and, in Subdiv. (1), adding provision re number of applications submitted, and made technical and conforming changes; P.A. 17-216 amended Subsec. (b) to add references to application for order to compel disclosure, delete Subpara. (A) and (B) designators, amended Subsec. (d) to add provisions re order issued pursuant to Subsec. (b) and content of subscriber's or customer's communications or geo-location data and references to appropriate law enforcement official, amended Subsec. (e) to add reference to communications data or geo-location data and replace provision re notice to be filed with clerk of court that issued order with provision re notice to be filed with clerk of court for geographical area within which person who may be arrested would be presented, and add provisions re notice to include case number assigned to investigation and return and inventory to include case number assigned to investigation and to remain sealed until notice is filed with clerk, and made technical and conforming changes; P.A. 17-221 amended Subsec. (a) to add new Subdiv. (3) defining “cell site simulator device”, redesignate existing Subdivs. (3) to (8) as Subdivs. (4) to (9) and add reference to cell site simulator device in redesignated Subdiv. (6), added new Subsec. (c) re installation or use of cell site simulator device, redesignated existing Subsecs. (c) to (i) as Subsecs. (d) to (j), and made conforming changes.

Notation

There is nothing in section to suggest that defendant is to receive notice re a third party's phone records; the fact that victim's phone records show that she received calls from defendant does not, in itself, make notice provisions of Subsec. (d) applicable. 161 CA 10.