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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY SACCONE, MARSICO, MALONEY, BAKER, STEPHENS, SAYLOR, BENNINGHOFF, ROCK AND MILNE, SEPTEMBER 5, 2012 |
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| REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 5, 2012 |
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| AN ACT |
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1 | Amending Title 18 (Crimes and Offenses) of the Pennsylvania |
2 | Consolidated Statutes, providing for administrative subpoena. |
3 | The General Assembly of the Commonwealth of Pennsylvania |
4 | hereby enacts as follows: |
5 | Section 1. Title 18 of the Pennsylvania Consolidated |
6 | Statutes is amended by adding a section to read: |
7 | § 5743.1. Administrative subpoena. |
8 | (a) Authorization.-- |
9 | (1) In an investigation of or relating to an offense |
10 | involving the sexual exploitation or abuse of children, the |
11 | following shall apply: |
12 | (i) The following may issue in writing and cause to |
13 | be served a subpoena requiring the production and |
14 | testimony under subparagraph (ii): |
15 | (A) The Attorney General. |
16 | (B) A deputy attorney general designated in |
17 | writing by the Attorney General. |
18 | (C) A district attorney. |
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1 | (D) An assistant district attorney designated in |
2 | writing by a district attorney. |
3 | (ii) A subpoena issued under subparagraph (i) may be |
4 | issued to a provider of electronic communication service |
5 | or remote computing service: |
6 | (A) requiring disclosure under section 5743(c) |
7 | (2) (relating to requirements for governmental |
8 | access) of a subscriber or customer's name, address, |
9 | telephone or instrument number or other subscriber |
10 | number or identity, including any temporarily |
11 | assigned network address, which may be relevant to an |
12 | authorized law enforcement inquiry; or |
13 | (B) requiring a custodian of the records of the |
14 | provider to give testimony or affidavit concerning |
15 | the production and authentication of the records or |
16 | information. |
17 | (2) A subpoena under this section shall describe the |
18 | information required to be produced and prescribe a return |
19 | date within a reasonable period of time within which the |
20 | information can be assembled and made available. |
21 | (3) If summoned to appear under paragraph (1)(ii)(B), a |
22 | custodian of records subpoenaed under this section shall be |
23 | paid the same fees and mileage that are paid to witnesses in |
24 | the courts of this Commonwealth. |
25 | (4) Prior to the return date specified in the summons, |
26 | the person or entity summoned may, in the court of common |
27 | pleas of the county in which the person or entity conducts |
28 | business or resides, petition for an order modifying or |
29 | setting aside the summons or for a prohibition of disclosure |
30 | ordered by a court under paragraph (7). |
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1 | (5) The following shall apply: |
2 | (i) Except as provided under subparagraph (ii), if |
3 | no case or proceeding arises from the production of |
4 | materials under this section within a reasonable time |
5 | after the materials are produced, the agency to which the |
6 | materials were delivered shall, upon written demand made |
7 | by the person producing the materials, return the |
8 | materials to the person. |
9 | (ii) This paragraph shall not apply if the |
10 | production required was of copies rather than originals. |
11 | (6) A subpoena issued under paragraph (1)(i) may require |
12 | production as soon as possible, but not less than 24 hours |
13 | after service of the subpoena. |
14 | (7) Upon application of the Commonwealth, a court of |
15 | common pleas for the jurisdiction in which the investigation |
16 | is taking place may issue an ex parte order that no person or |
17 | entity may disclose to any other person or entity, other than |
18 | to an attorney in order to obtain legal advice, the existence |
19 | of the summons for a period of up to 90 days. The following |
20 | shall apply: |
21 | (i) The order may be issued on a showing that the |
22 | materials being sought may be relevant to the |
23 | investigation and there is reason to believe that the |
24 | disclosure may result in any of the following: |
25 | (A) Endangerment to the life or physical safety |
26 | of any person. |
27 | (B) Flight to avoid prosecution. |
28 | (C) Destruction of or tampering with evidence. |
29 | (D) Intimidation of potential witnesses. |
30 | (ii) An order under this paragraph may be renewed |
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1 | for additional periods of up to 90 days upon a showing |
2 | that the circumstances under subparagraph (i) continue to |
3 | exist. |
4 | (8) A summons issued under this section may not require |
5 | the production of anything that would be protected from |
6 | production under the standards applicable to a subpoena for |
7 | the production of documents issued by a court. |
8 | (b) Service.--The following shall apply: |
9 | (1) A subpoena issued under this section may be served |
10 | by any person who is at least 18 years of age and is |
11 | designated in the subpoena to serve it. |
12 | (2) Service upon a natural person may be made by |
13 | personal delivery of the subpoena to him. |
14 | (3) Service may be made upon a domestic or foreign |
15 | corporation or upon a partnership or other unincorporated |
16 | association which is subject to suit under a common name by |
17 | delivering the subpoena to any of the following: |
18 | (i) An officer of the entity. |
19 | (ii) A managing or general agent of the entity. |
20 | (iii) An agent authorized by appointment or by law |
21 | to receive service of process in this Commonwealth. |
22 | (4) The affidavit of the person serving the subpoena |
23 | entered on a true copy of the subpoena by the person serving |
24 | it shall be proof of service. |
25 | (c) Enforcement.--The following shall apply: |
26 | (1) The Attorney General or a district attorney may |
27 | invoke the aid of a court of common pleas within the |
28 | following jurisdictions to compel compliance with the |
29 | subpoena: |
30 | (i) The jurisdiction in which the investigation is |
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1 | carried on. |
2 | (ii) The jurisdiction in which the subpoenaed person |
3 | resides, conducts business or may be found. |
4 | (2) The court may issue an order requiring the |
5 | subpoenaed person to appear before the Attorney General or a |
6 | district attorney to produce records or to give testimony |
7 | concerning the production and authentication of the records. |
8 | A failure to obey the order of the court may be punished by |
9 | the court as contempt of court. All process may be served in |
10 | a judicial district of the Commonwealth in which the person |
11 | may be found. |
12 | (d) Immunity from civil liability.--Notwithstanding any |
13 | State or local law, any person receiving a subpoena under this |
14 | section who complies in good faith with the subpoena and |
15 | produces the records sought shall not be liable in a court of |
16 | this Commonwealth to a subscriber, customer or other person for |
17 | the production or for nondisclosure of that production to the |
18 | subscriber, customer or person. |
19 | (e) Definitions.--As used in this section, the following |
20 | words and phrases shall have the meanings given to them in this |
21 | subsection: |
22 | "Offense involving the sexual exploitation or abuse of |
23 | children." An offense, including an attempt, conspiracy or |
24 | solicitation involving any of the following, in which a victim |
25 | is an individual who is under the age of 18 years: |
26 | (1) Chapter 29 (relating to kidnapping). |
27 | (2) Chapter 30 (relating to trafficking of persons). |
28 | (3) Chapter 31 (relating to sexual offenses). |
29 | (4) Section 6312 (relating to sexual abuse of children). |
30 | (5) Section 6318 (relating to unlawful contact with |
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1 | minor). |
2 | (6) Section 6320 (relating to sexual exploitation of |
3 | children). |
4 | Section 2. This act shall take effect immediately. |
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