PRIOR PRINTER'S NO. 2586 PRINTER'S NO. 2737
No. 1982 Session of 2001
INTRODUCED BY GANNON, PERZEL, BARLEY, E. Z. TAYLOR, RAYMOND,
GODSHALL, HERMAN, CLARK, GEIST, ADOLPH, ARMSTRONG, M. BAKER,
BARD, BEBKO-JONES, BELFANTI, CAPPELLI, CORRIGAN, CREIGHTON,
CRUZ, DALEY, J. EVANS, FAIRCHILD, FEESE, FRANKEL, GABIG,
GEORGE, HARHAI, HORSEY, KELLER, KENNEY, LaGROTTA, LAUGHLIN,
MAITLAND, McGEEHAN, MELIO, MICOZZIE, SATHER, SCHRODER,
SCHULER, B. SMITH, SOLOBAY, STABACK, TRICH, C. WILLIAMS,
WILT, WOGAN, YOUNGBLOOD, DALLY, TURZAI, TRELLO, DAILEY AND
BROWNE, OCTOBER 2, 2001
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 23, 2001
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, FURTHER PROVIDING FOR THE DEFINITIONS <--
3 OF "ELECTRONIC COMMUNICATION SYSTEM," "TRAP AND TRACE DEVICE"
4 AND "WIRE COMMUNICATION"; providing for offenses relating to
5 telecommunication identification interception devices; and
6 further providing for the disclosure of certain evidence, FOR <--
7 REQUIREMENTS FOR GOVERNMENT ACCESS, FOR COST REIMBURSEMENT,
8 FOR MOBILE TRACKING DEVICES AND FOR ISSUANCE OF AN ORDER FOR
9 USE OF CERTAIN DEVICES.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Section 5705 heading of Title 18 of the <--
13 Pennsylvania Consolidated Statutes is amended and the section is
14 amended by adding a paragraph to read:
15 SECTION 1. THE DEFINITIONS OF "ELECTRONIC COMMUNICATION <--
16 SYSTEM," "TRAP AND TRACE DEVICE" AND "WIRE COMMUNICATION" IN
17 SECTION 5702 OF TITLE 18 OF THE PENNSYLVANIA CONSOLIDATED
1 STATUTES ARE AMENDED TO READ:
2 § 5702. DEFINITIONS.
3 AS USED IN THIS CHAPTER, THE FOLLOWING WORDS AND PHRASES
4 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
5 CONTEXT CLEARLY INDICATES OTHERWISE:
6 * * *
7 "ELECTRONIC COMMUNICATION SYSTEM." ANY WIRE, RADIO,
8 ELECTROMAGNETIC, PHOTO-OPTICAL OR PHOTOELECTRONIC FACILITIES FOR
9 THE TRANSMISSION OF WIRE OR ELECTRONIC COMMUNICATIONS, AND ANY
10 COMPUTER FACILITIES OR RELATED ELECTRONIC EQUIPMENT FOR THE
11 ELECTRONIC STORAGE OF SUCH COMMUNICATIONS.
12 * * *
13 "TRAP AND TRACE DEVICE." A DEVICE WHICH CAPTURES THE
14 INCOMING ELECTRONIC OR OTHER IMPULSES WHICH IDENTIFY THE
15 ORIGINATING NUMBER OF AN INSTRUMENT OR DEVICE FROM WHICH A WIRE
16 OR ELECTRONIC COMMUNICATION WAS TRANSMITTED, INCLUDING, BUT NOT
17 LIMITED TO, CALLER ID, DELUXE CALLER ID OR ANY OTHER FEATURES
18 AVAILABLE TO ASCERTAIN THE TELEPHONE NUMBER, LOCATION OR
19 SUBSCRIBER INFORMATION OF A FACILITY CONTACTING THE FACILITY
20 WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED.
21 * * *
22 "WIRE COMMUNICATION." ANY AURAL TRANSFER MADE IN WHOLE OR IN
23 PART THROUGH THE USE OF FACILITIES FOR THE TRANSMISSION OF
24 COMMUNICATION BY WIRE, CABLE OR OTHER LIKE CONNECTION BETWEEN
25 THE POINT OF ORIGIN AND THE POINT OF RECEPTION, INCLUDING THE
26 USE OF SUCH A CONNECTION IN A SWITCHING STATION, FURNISHED OR
27 OPERATED BY A TELEPHONE, TELEGRAPH OR RADIO COMPANY FOR HIRE AS
28 A COMMUNICATION COMMON CARRIER. [THE TERM INCLUDES ANY
29 ELECTRONIC STORAGE OF SUCH COMMUNICATION.]
30 SECTION 2. SECTION 5705 HEADING OF TITLE 18 IS AMENDED AND
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1 THE SECTION IS AMENDED BY ADDING A PARAGRAPH TO READ:
2 § 5705. Possession, sale, distribution, manufacture or
3 advertisement of electronic, mechanical or other
4 devices and telecommunication identification
5 interception devices.
6 Except as otherwise specifically provided in section 5706
7 (relating to exceptions to prohibitions in possession, sale,
8 distribution, manufacture or advertisement of electronic,
9 mechanical or other devices), a person is guilty of a felony of
10 the third degree if he does any of the following:
11 * * *
12 (5) Intentionally possesses a telecommunication
13 identification interception device.
14 Section 2. Section 5712 of Title 18 is amended by adding a <--
15 subsection to read:
16 § 5712. Issuance of order and effect.
17 * * *
18 (h) Roving wiretaps.--The requirements of subsection (a)(3)
19 relating to the specification of the facilities from which, or
20 the place where, the communication is to be intercepted do not
21 apply if:
22 (1) In the case of an application with respect to the
23 interception of an oral communication:
24 (i) the application contains a full and complete
25 statement as to why such specification is not practical
26 and identifies the person committing the offense and
27 whose communications are to be intercepted; and
28 (ii) the judge finds that such specification is not
29 practical.
30 (2) In the case of an application with respect to a wire
20010H1982B2737 - 3 -
1 or electronic communication:
2 (i) the application identifies the person believed
3 to be committing the offense and whose communications are
4 to be intercepted and the applicant makes a showing of a
5 purpose, on the part of that person, to thwart
6 interception by changing facilities; and
7 (ii) the judge finds that such purpose has been
8 adequately shown.
9 Section 3. Section 5717(a) of Title 18 is amended and the
10 section is amended by adding subsections to read:
11 SECTION 3. SECTIONS 5712(F), 5717(A) AND 5743 (A) AND (B) OF <--
12 TITLE 18 ARE AMENDED AND THE SECTIONS ARE AMENDED BY ADDING
13 SUBSECTIONS TO READ:
14 § 5712. ISSUANCE OF ORDER AND EFFECT.
15 * * *
16 (F) ASSISTANCE.--AN ORDER AUTHORIZING THE INTERCEPTION OF A
17 WIRE, ELECTRONIC OR ORAL COMMUNICATION SHALL, UPON REQUEST OF
18 THE APPLICANT, DIRECT THAT A PROVIDER OF ELECTRONIC
19 COMMUNICATION SERVICE SHALL FURNISH THE APPLICANT FORTHWITH ALL
20 INFORMATION, FACILITIES AND TECHNICAL ASSISTANCE NECESSARY TO
21 ACCOMPLISH THE INTERCEPTION UNOBTRUSIVELY AND WITH A MINIMUM OF
22 INTERFERENCE WITH THE SERVICES THAT SUCH SERVICE PROVIDER IS
23 AFFORDING THE PERSON WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED.
24 THE OBLIGATION OF A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE
25 UNDER SUCH AN ORDER MAY INCLUDE, BUT IS NOT LIMITED TO,
26 INSTALLATION OF A PEN REGISTER OR OF A TRAP AND TRACE DEVICE
27 [AND], PROVIDING CALLER ID, DELUXE CALLER ID OR ANY OTHER
28 FEATURES AVAILABLE TO ASCERTAIN THE TELEPHONE NUMBER, LOCATION
29 OR SUBSCRIBER INFORMATION OF A FACILITY CONTACTING THE FACILITY
30 WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED, DISCLOSURE OF A
20010H1982B2737 - 4 -
1 RECORD OR OTHER INFORMATION OTHERWISE AVAILABLE UNDER SECTION
2 5743 (RELATING TO REQUIREMENTS FOR GOVERNMENTAL ACCESS),
3 INCLUDING CONDUCTING AN IN-PROGRESS TRACE DURING AN
4 INTERCEPTION, PROVIDED THAT SUCH OBLIGATION OF A PROVIDER OF
5 ELECTRONIC COMMUNICATIONS SERVICE IS TECHNOLOGICALLY FEASIBLE.
6 SUCH ORDER SHALL APPLY REGARDLESS OF WHETHER THE ELECTRONIC
7 SERVICE PROVIDER IS HEADQUARTERED WITHIN THIS COMMONWEALTH, SO
8 LONG AS THE INTERCEPTION IS OTHERWISE CONDUCTED WITHIN THIS
9 COMMONWEALTH, AS DEFINED BY THE ACT. SUCH ORDER REGARDING
10 DISCLOSURE OF A RECORD OR OTHER INFORMATION OTHERWISE AVAILABLE
11 UNDER SECTION 5743 SHALL APPLY TO ALL ELECTRONIC SERVICE
12 PROVIDERS WHO SERVICE FACILITIES WHICH CONTACT OR ARE CONTACTED
13 BY THE FACILITY WHOSE COMMUNICATIONS ARE TO BE INTERCEPTED,
14 REGARDLESS OF WHETHER THE ORDER SPECIFICALLY NAMES ANY SUCH
15 ELECTRONIC SERVICE PROVIDER. SUCH ORDER MAY SPECIFY THE PERIOD
16 OF TIME AN ELECTRONIC SERVICE PROVIDER HAS TO FURNISH TO THE
17 APPLICANT WHO REQUESTS DISCLOSURE OF A RECORD OR OTHER
18 INFORMATION OTHERWISE AVAILABLE UNDER SECTION 5743.
19 * * *
20 (H) MULTIPOINT WIRETAPS.--THE REQUIREMENTS OF SUBSECTION
21 (A)(3) RELATING TO THE SPECIFICATION OF THE FACILITIES FROM
22 WHICH, OR THE PLACE WHERE, THE COMMUNICATION IS TO BE
23 INTERCEPTED DO NOT APPLY IF:
24 (1) THE APPLICATION IS BY THE ATTORNEY GENERAL OR A
25 DEPUTY ATTORNEY GENERAL DESIGNATED IN WRITING BY THE ATTORNEY
26 GENERAL OR THE DISTRICT ATTORNEY OR AN ASSISTANT DISTRICT
27 ATTORNEY DESIGNATED IN WRITING BY THE DISTRICT ATTORNEY OF
28 THE COUNTY WHEREIN THE APPLICATION IS MADE;
29 (2) THE APPLICATION CONTAINS A FULL AND COMPLETE
30 STATEMENT AS TO WHY SUCH SPECIFICATION IS NOT PRACTICAL, AND
20010H1982B2737 - 5 -
1 IDENTIFIES THE PERSON COMMITTING THE OFFENSE AND WHOSE
2 COMMUNICATIONS ARE TO BE INTERCEPTED; AND
3 (3) THE JUDGE FINDS THAT THE SPECIFICATION IS NOT
4 PRACTICAL.
5 (I) EXPIRATION.--SUBSECTION (H) SHALL EXPIRE ON DECEMBER 31,
6 2008.
7 § 5717. Investigative disclosure or use of contents of wire,
8 electronic or oral communications or derivative
9 evidence.
10 (a) Law enforcement personnel.--Any investigative or law
11 enforcement officer who, under subsection (a.1), (a.2) or (b),
12 has obtained knowledge of the contents of any wire, electronic
13 or oral communication, or evidence derived therefrom, may
14 disclose such contents or evidence to another investigative or
15 law enforcement officer to the extent that such disclosure is
16 appropriate to the proper performance of the official duties of
17 the officer making or receiving the disclosure.
18 * * *
19 (a.2) Civilians.--Any person other than an investigative or
20 law enforcement officer who, as party to the communication, has
21 obtained knowledge of the contents of any wire, electronic or
22 oral communication, or evidence derived therefrom, may disclose
23 such contents or evidence to an investigative or law enforcement
24 officer, where such is evidence of a homicide or a felony of the
25 first degree.
26 * * *
27 (c) Otherwise authorized personnel.--Any person who, by any
28 means authorized by the laws of another state or the Federal
29 Government, has obtained knowledge of the contents of any wire,
30 electronic or oral communication, or evidence derived therefrom,
20010H1982B2737 - 6 -
1 may disclose the contents or evidence to an investigative or law
2 enforcement officer and may disclose such contents or evidence
3 where otherwise admissible while giving testimony under oath or
4 affirmation in any proceeding in any court of this Commonwealth.
5 § 5743. REQUIREMENTS FOR GOVERNMENTAL ACCESS. <--
6 (A) CONTENTS OF WIRE OR ELECTRONIC COMMUNICATIONS IN
7 ELECTRONIC STORAGE.--INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS
8 MAY REQUIRE THE DISCLOSURE BY A PROVIDER OF ELECTRONIC
9 COMMUNICATION SERVICE OF THE CONTENTS OF [AN] A WIRE OR
10 ELECTRONIC COMMUNICATION WHICH IS IN ELECTRONIC STORAGE IN [AN]
11 A WIRE OR ELECTRONIC COMMUNICATION SYSTEM FOR:
12 (1) ONE HUNDRED EIGHTY DAYS OR LESS ONLY PURSUANT TO A
13 WARRANT ISSUED UNDER THE PENNSYLVANIA RULES OF CRIMINAL
14 PROCEDURE.
15 (2) MORE THAN 180 DAYS BY THE MEANS AVAILABLE UNDER
16 SUBSECTION (B).
17 (B) CONTENTS OF A WIRE OR ELECTRONIC COMMUNICATIONS IN A
18 REMOTE COMPUTING SERVICE.--
19 (1) INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS MAY
20 REQUIRE A PROVIDER OF REMOTE COMPUTING SERVICE TO DISCLOSE
21 THE CONTENTS OF ANY WIRE OR ELECTRONIC COMMUNICATION TO WHICH
22 THIS PARAGRAPH IS MADE APPLICABLE BY PARAGRAPH (2):
23 (I) WITHOUT REQUIRED NOTICE TO THE SUBSCRIBER OR
24 CUSTOMER IF THE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER
25 OBTAINS A WARRANT ISSUED UNDER THE PENNSYLVANIA RULES OF
26 CRIMINAL PROCEDURE; OR
27 (II) WITH PRIOR NOTICE FROM THE INVESTIGATIVE OR LAW
28 ENFORCEMENT OFFICER TO THE SUBSCRIBER OR CUSTOMER IF THE
29 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER:
30 (A) USES AN ADMINISTRATIVE SUBPOENA AUTHORIZED
20010H1982B2737 - 7 -
1 BY A STATUTE OR A GRAND JURY SUBPOENA; OR
2 (B) OBTAINS A COURT ORDER FOR THE DISCLOSURE
3 UNDER SUBSECTION (D);
4 EXCEPT THAT DELAYED NOTICE MAY BE GIVEN PURSUANT TO SECTION
5 5745 (RELATING TO DELAYED NOTICE).
6 (2) PARAGRAPH (1) IS APPLICABLE WITH RESPECT TO [AN] A
7 WIRE OR ELECTRONIC COMMUNICATION WHICH IS HELD OR MAINTAINED
8 ON THAT SERVICE:
9 (I) ON BEHALF OF AND RECEIVED BY MEANS OF ELECTRONIC
10 TRANSMISSION FROM, OR CREATED BY MEANS OF COMPUTER
11 PROCESSING OF COMMUNICATIONS RECEIVED BY MEANS OF
12 ELECTRONIC TRANSMISSION FROM, A SUBSCRIBER OR CUSTOMER OF
13 THE REMOTE COMPUTING SERVICE.
14 (II) SOLELY FOR THE PURPOSE OF PROVIDING STORAGE OR
15 COMPUTER PROCESSING SERVICES TO THE SUBSCRIBER OR
16 CUSTOMER, IF THE PROVIDER IS NOT AUTHORIZED TO ACCESS THE
17 CONTENTS OF ANY SUCH COMMUNICATION FOR THE PURPOSE OF
18 PROVIDING ANY SERVICES OTHER THAN STORAGE OR COMPUTER
19 PROCESSING.
20 * * *
21 (F) DISTRICT JUSTICE AUTHORIZATION.--FOR PURPOSES OF
22 SUBSECTIONS (C), (D) AND (E), THE TERM "COURT" SHALL INCLUDE A
23 DISTRICT JUSTICE.
24 SECTION 4. SECTION 5746 OF TITLE 18 IS AMENDED BY ADDING A
25 SUBSECTION TO READ:
26 § 5746. COST REIMBURSEMENT.
27 * * *
28 (D) REGULATIONS.--THE ATTORNEY GENERAL SHALL PROMULGATE
29 REGULATIONS TO IMPLEMENT THIS SECTION.
30 SECTION 5. SECTION 5761(B) OF TITLE 18 IS AMENDED TO READ:
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1 § 5761. MOBILE TRACKING DEVICES.
2 * * *
3 (B) JURISDICTION.--ORDERS PERMITTED BY THIS SECTION MAY
4 AUTHORIZE THE USE OF MOBILE TRACKING DEVICES [WITHIN THE
5 JURISDICTION OF THE COURT OF COMMON PLEAS, AND OUTSIDE THAT
6 JURISDICTION BUT WITHIN THIS COMMONWEALTH,] IF THE DEVICE IS
7 INSTALLED AND MONITORED WITHIN [THE JURISDICTION OF THE COURT OF
8 COMMON PLEAS] THIS COMMONWEALTH.
9 * * *
10 SECTION 6. SECTION 5773 (A) AND (C) OF TITLE 18 ARE AMENDED
11 AND THE SECTION IS AMENDED BY ADDING SUBSECTIONS TO READ:
12 § 5773. ISSUANCE OF AN ORDER FOR USE OF CERTAIN DEVICES.
13 (A) IN GENERAL.--UPON AN APPLICATION MADE UNDER SECTION 5772
14 (RELATING TO APPLICATION FOR AN ORDER FOR USE OF CERTAIN
15 DEVICES), THE COURT SHALL ENTER AN EX PARTE ORDER AUTHORIZING
16 THE INSTALLATION AND USE OF A PEN REGISTER, A TRAP AND TRACE
17 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE
18 WITHIN [THE JURISDICTION OF THE COURT IF THE COURT] THIS
19 COMMONWEALTH IF THE COURT FINDS THAT THERE IS PROBABLE CAUSE TO
20 BELIEVE THAT INFORMATION RELEVANT TO AN ONGOING CRIMINAL
21 INVESTIGATION WILL BE OBTAINED BY SUCH INSTALLATION AND USE ON
22 THE TARGETED TELEPHONE.
23 * * *
24 (C) TIME PERIOD AND EXTENSIONS.--
25 (1) AN ORDER ISSUED UNDER THIS SECTION SHALL AUTHORIZE
26 THE INSTALLATION AND USE OF A PEN REGISTER, TRAP AND TRACE
27 DEVICE OR A TELECOMMUNICATION IDENTIFICATION INTERCEPTION
28 DEVICE FOR A PERIOD NOT TO EXCEED [30] 60 DAYS.
29 (2) EXTENSIONS OF SUCH AN ORDER MAY BE GRANTED BUT ONLY
30 UPON AN APPLICATION FOR AN ORDER UNDER SECTION 5772 AND UPON
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1 THE JUDICIAL FINDING REQUIRED BY SUBSECTION (A). THE PERIOD
2 OF EACH EXTENSION SHALL BE FOR A PERIOD NOT TO EXCEED 30
3 DAYS.
4 * * *
5 (E) MULTIPOINT PEN REGISTERS AND TRAP AND TRACE DEVICES.--
6 THE REQUIREMENTS OF SUBPARAGRAPH (B)(1)(IV) RELATING TO THE
7 PHYSICAL LOCATION OF THE TARGETED TELEPHONE DO NOT APPLY IF:
8 (1) THE APPLICATION IS BY THE ATTORNEY GENERAL OR A
9 DEPUTY ATTORNEY GENERAL DESIGNATED IN WRITING BY THE ATTORNEY
10 GENERAL, OR THE DISTRICT ATTORNEY, OR AN ASSISTANT DISTRICT
11 ATTORNEY DESIGNATED IN WRITING BY THE DISTRICT ATTORNEY OF
12 THE COUNTY WHEREIN THE APPLICATION IS MADE;
13 (2) THE APPLICATION CONTAINS A FULL AND COMPLETE
14 STATEMENT AS TO WHY SUCH SPECIFICATION IS NOT PRACTICAL; AND
15 (3) THE JUDGE FINDS THAT THE SPECIFICATION IS NOT
16 PRACTICAL.
17 (F) EXPIRATION.--SUBSECTION (E) SHALL EXPIRE ON DECEMBER 31,
18 2008.
19 Section 4 7. This act shall take effect in 60 days. <--
I19L18JS/20010H1982B2737 - 10 -