SENATE AMENDED

 

PRIOR PRINTER'S NOS. 3573, 3662, 3728

PRINTER'S NO.  4083

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

2400

Session of

2012

  

  

INTRODUCED BY MARSICO, CALTAGIRONE, STEPHENS, TURZAI, AUMENT, BAKER, BARBIN, BARRAR, BOBACK, BOYD, CLYMER, D. COSTA, DELOZIER, ELLIS, EVERETT, GEIST, GILLESPIE, GINGRICH, GRELL, GROVE, HACKETT, HARPER, HARRIS, HELM, HENNESSEY, HICKERNELL, KAUFFMAN, M. K. KELLER, KILLION, KNOWLES, KOTIK, MAJOR, MILLARD, MILLER, MILNE, MOUL, O'NEILL, PAYNE, PETRI, PICKETT, PYLE, QUINN, ROCK, SAYLOR, SCAVELLO, TAYLOR, TOBASH, TOOHIL, VEREB, VULAKOVICH, WATSON, CARROLL, HESS, SWANGER AND CREIGHTON, MAY 21, 2012

  

  

SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED, SEPTEMBER 25, 2012   

  

  

  

AN ACT

  

1

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

2

Consolidated Statutes, further providing for definitions, for

3

exceptions to prohibition of interception and disclosure of

4

communications, for possession, sale, distribution,

5

manufacture or advertisement of electronic, mechanical or

6

other devices, for issuance of order and effect; providing

7

for target-specific orders; and further providing for

8

emergency hostage and barricade situations, for investigative

9

disclosure or use of contents of wire, electronic or oral

10

communications or derivative evidence, for evidentiary

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11

disclosure of contents of intercepted communication or

12

derivative evidence, for requirements for governmental

13

access, for cost reimbursement, for mobile tracking devices,

14

for application for an order for use of certain devices and

15

for issuance of an order for use of certain devices.

16

The General Assembly of the Commonwealth of Pennsylvania

17

hereby enacts as follows:

18

Section 1.  The definitions of "electronic communication

19

service," "electronic communication system," "oral

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20

communication," "intercept," "trap and trace device" and "wire

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1

communication" in section 5702 of Title 18 of the Pennsylvania

2

Consolidated Statutes are amended and the section is amended by

3

adding definitions to read:

4

§ 5702.  Definitions.

5

As used in this chapter, the following words and phrases

6

shall have the meanings given to them in this section unless the

7

context clearly indicates otherwise:

8

* * *

9

"Communication service."  Any service which provides to users

10

the ability to send or receive wire or electronic

11

communications.

12

"Communication system."  Any wire, radio, electromagnetic,

13

photo-optical or photoelectronic facilities for the transmission

14

of communications, and any computer facilities or related

15

electronic equipment for the electronic storage of such

16

communications.

17

"Constructive notice."  Notice provided by any means

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18

sufficient to apprise a reasonable person that an oral

19

communication is or may be subject to interception.

20

* * *

21

"Crime of violence."  Any of the following:

22

(1)  Any of the following crimes:

23

(i)  Murder in any degree.

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24

(ii)  A crime of violence as defined in 42 Pa.C.S. §

25

9714(g) (relating to sentences for second and subsequent

26

offenses).

27

(iii)  Intimidation of witness or victim.

28

(iv)  Retaliation against witness, victim or party.

29

(v)  Criminal attempt, criminal conspiracy or

30

criminal solicitation to commit any of the offenses under

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1

this paragraph.

2

(2)  Any crime requiring registration under 42

3

Pa.C.S. Ch. 97 Subch. H (relating to registration of

4

sexual offenders). as defined in section 2502(a), (b) or

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5

(c) (relating to murder).

6

(ii)  Voluntary manslaughter as defined in section

7

2503 (relating to voluntary manslaughter), drug delivery

8

resulting in death as defined in section 2506(a)

9

(relating to drug delivery resulting in death),

10

aggravated assault as defined in section 2702(a)(1) or

11

(2) (relating to aggravated assault), kidnapping as

12

defined in section 2901(a) or (a.1) (relating to

13

kidnapping), rape as defined in section 3121(a), (c) or

14

(d) (relating to rape), involuntary deviate sexual

15

intercourse as defined in section 3123(a), (b) or (c)

16

(relating to involuntary deviate sexual intercourse),

17

sexual assault as defined in section 3124.1 (relating to

18

sexual assault), aggravated indecent assault as defined

19

in section 3125(a) or (b) (relating to aggravated

20

indecent assault), incest as defined in section 4302(a)

21

or (b) (relating to incest), arson as defined in section

22

3301(a) (relating to arson and related offenses),

23

burglary as defined in section 3502(a)(1) (relating to

24

burglary), robbery as defined in section 3701(a)(1)(i),

25

(ii) or (iii) (relating to robbery) or robbery of a motor

26

vehicle as defined in section 3702(a) (relating to

27

robbery of a motor vehicle).

28

(iii)  Intimidation of witness or victim as defined

29

in section 4952(a) and (b) (relating to intimidation of

30

witnesses or victims).

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1

(iv)  Retaliation against witness, victim or party as

2

defined in section 4953(a) and (b) (relating to

3

retaliation against witness, victim or party).

4

(v)  Criminal attempt as defined in section 901(a)

5

(relating to criminal attempt), criminal solicitation as

6

defined in section 902(a) (relating to criminal

7

solicitation) or criminal conspiracy as defined in

8

section 903(a) (relating to criminal conspiracy) to

9

commit any of the offenses specified in this definition.

10

(3) (2)  Any offense equivalent to an offense under

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11

paragraph (1) or (2) under the laws of this Commonwealth in

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12

effect at the time of the commission of that offense or under

13

the laws of another jurisdiction.

14

* * *

15

["Electronic communication service."  Any service which

16

provides to users the ability to send or receive wire or

17

electronic communications.

18

"Electronic communication system."  Any wire, radio,

19

electromagnetic, photo-optical or photoelectronic facilities for

20

the transmission of electronic communications, and any computer

21

facilities or related electronic equipment for the electronic

22

storage of such communications.]

23

* * *

24

"Intercept."  Aural or other acquisition of the contents of

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25

any wire, electronic or oral communication through the use of

26

any electronic, mechanical or other device. The term shall

27

include the point at which the contents of the communication are

28

monitored by investigative or law enforcement officers. The term

29

shall not include the acquisition of the contents of a

30

communication made through any electronic, mechanical or other  

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1

device or telephone instrument to an investigative or law

2

enforcement officer, or between a person and an investigative or

3

law enforcement officer, where the investigative or law

4

enforcement officer poses as an actual person who is the

5

intended recipient of the communication, provided that the

6

Attorney General, a deputy attorney general designated in

7

writing by the Attorney General, a district attorney or an

8

assistant district attorney designated in writing by a district

9

attorney of the county wherein the investigative or law

10

enforcement officer is to receive or make the communication has

11

reviewed the facts and is satisfied that the communication

12

involves suspected criminal activities and has given prior

13

approval for the communication.

14

* * *

15

"Mobile communications tracking information."  Information

16

generated by a communication common carrier or a communication

17

service which indicates the location of an electronic device

18

supported by the communication common carrier or communication

19

service.

20

* * *

21

"Oral communication."  Any oral communication uttered by a

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22

person possessing an expectation that such communication is not

23

subject to interception under circumstances justifying such

24

expectation. An expectation is not justified if it is

25

objectively reasonable that what is spoken will or could be

26

overheard by another person not directly participating in the

27

communication, if actual or constructive notice has been given

28

that audio recording or other interception is or may be

29

occurring or if equipment commonly used for video and audio

30

recording is plainly visible. The term does not include any

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1

electronic communication.

2

* * *

3

"Signed, written record."  A memorialization of the contents

4

of any wire, electronic or oral communication intercepted in

5

accordance with this subchapter, including the name of the

6

investigative or law enforcement officer who transcribed the

7

record, kept in electronic, paper or any form. The signature of

8

the transcribing officer shall not be required to be written,

9

but may be electronic.

10

* * *

11

"Trap and trace device."  A device which captures the

12

incoming electronic or other impulses which identify the

13

originating number of an instrument or device from which a wire

14

or [electronic] communication was transmitted. The term includes

15

caller ID, deluxe caller ID or any other features available to

16

ascertain the telephone number, location or subscriber

17

information of a facility contacting the facility whose

18

communications are to be intercepted.

19

* * *

20

"Wire communication."  Any aural transfer made in whole or in

21

part through the use of facilities for the transmission of

22

communication by wire, cable or other like connection between

23

the point of origin and the point of reception, including the

24

use of such a connection in a switching station, furnished or

25

operated by a telephone, telegraph or radio company for hire as

26

a communication common carrier. [The term includes any

27

electronic storage of such communication.]

28

Section 2.  Section 5704(2)(ii), (12)(ii), (13)(i)(B) and

29

(14)(i)(B) of Title 18 are amended, paragraph (2) is amended by

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30

adding a subparagraph and the section is amended by adding a

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1

paragraph to read:

2

§ 5704.  Exceptions to prohibition of interception and

3

disclosure of communications.

4

It shall not be unlawful and no prior court approval shall be

5

required under this chapter for:

6

* * *

7

(2)  Any investigative or law enforcement officer or any

8

person acting at the direction or request of an investigative

9

or law enforcement officer to intercept a wire, electronic or

10

oral communication involving suspected criminal activities,

11

including, but not limited to, the crimes enumerated in

12

section 5708 (relating to order authorizing interception of

13

wire, electronic or oral communications), where:

14

(i)  the communication was knowingly transmitted in

<--

15

any fashion to a third party by its author or another

16

sender and an investigative or law enforcement officer

17

legally obtains from the third party the communication or

18

a copy of the communication or the device to which it is

19

sent. Notwithstanding any other provision of this

20

chapter, an investigative or law enforcement officer may

21

contemporaneously intercept and respond to communications

22

sent to a third party, if he has legally obtained the

23

device to which the communications are being sent,

24

without disclosing his identity to the sender or author;

25

(ii)  one of the parties to the communication has

26

given prior consent to such interception. However, no

27

interception under this paragraph shall be made unless

28

the Attorney General or a deputy attorney general

29

designated in writing by the Attorney General, or the

30

district attorney, or an assistant district attorney

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1

designated in writing by the district attorney, of the

2

county wherein the interception is to be [made] 

3

initiated, has reviewed the facts and is satisfied that

4

the consent is voluntary and has given prior approval for

5

the interception; however, such interception shall be

6

subject to the recording and record keeping requirements

7

of section 5714(a) (relating to recording of intercepted

8

communications) and that the Attorney General, deputy

9

attorney general, district attorney or assistant district

10

attorney authorizing the interception shall be the

11

custodian of recorded evidence obtained therefrom;

12

* * *

13

(12)  Any investigative or law enforcement officer or any

14

person acting at the direction or request of an investigative

15

or law enforcement officer to intercept a wire or oral

16

communication involving suspected criminal activities where

17

the officer or the person is a party to the communication and

18

there is reasonable cause to believe that:

19

* * *

20

(ii)  that party:

21

(A)  [will] may resist with the use of weapons;

22

or

23

(B)  is threatening suicide or harm to himself or 

24

others.

25

(13)  An investigative officer, a law enforcement officer

26

or employees of the Department of Corrections for State

27

correctional facilities to intercept, record, monitor or

28

divulge any telephone calls from or to an inmate in a

29

facility under the following conditions:

30

(i)  The Department of Corrections shall adhere to

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1

the following procedures and restrictions when

2

intercepting, recording, monitoring or divulging any

3

telephone calls from or to an inmate in a State

4

correctional facility as provided for by this paragraph:

5

* * *

6

(B)  Unless otherwise provided for in this

7

paragraph, after intercepting or recording a

8

telephone conversation, only the superintendent,

9

warden or a designee of the superintendent or warden

10

or other chief administrative official or his or her

11

designee, or law enforcement officers shall have

12

access to that recording.

13

* * *

14

(14)  An investigative officer, a law enforcement officer

15

or employees of a county correctional facility to intercept,

16

record, monitor or divulge any telephone calls from or to an

17

inmate in a facility under the following conditions:

18

(i)  The county correctional facility shall adhere to

19

the following procedures and restrictions when

20

intercepting, recording, monitoring or divulging any

21

telephone calls from or to an inmate in a county

22

correctional facility as provided for by this paragraph:

23

* * *

24

(B)  Unless otherwise provided for in this

25

paragraph, after intercepting or recording a

26

telephone conversation, only the superintendent,

27

warden or a designee of the superintendent or warden

28

or other chief administrative official or his or her

29

designee, or law enforcement officers shall have

30

access to that recording.

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1

* * *

2

(17)  Any individual to intercept the contents of any

<--

3

wire, electronic or oral communication if that person is

4

under a reasonable suspicion that the intercepted party is

5

committing, about to commit or has committed a crime of

6

violence or felony of the first degree and there is reason to

7

believe that evidence of the crime may be obtained from the

8

interception. This paragraph shall not apply to interceptions

9

made at the prior direction of any law enforcement officer. 

10

victim, witness or private detective licensed under the act

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11

of August 21, 1953 (P.L.1273, No.361), known as The Private

12

Detective Act of 1953, to intercept the contents of any wire,

13

electronic or oral communication, if that person is under a

14

reasonable suspicion that the intercepted party is

15

committing, about to commit or has committed a crime of

16

violence and there is reason to believe that evidence of the

17

crime of violence may be obtained from the interception.

18

Section 3.  Section 5705 heading of Title 18 is amended and

19

the section is amended by adding a paragraph to read:

20

§ 5705.  Possession, sale, distribution, manufacture or

21

advertisement of electronic, mechanical or other

22

devices and telecommunication identification

23

interception devices.

24

Except as otherwise specifically provided in section 5706

25

(relating to exceptions to prohibitions in possession, sale,

26

distribution, manufacture or advertisement of electronic,

27

mechanical or other devices), a person is guilty of a felony of

28

the third degree if he does any of the following:

29

* * *

30

(5)  Intentionally possesses a telecommunication

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1

identification interception device.

2

Section 4.  Sections 5712(a) introductory paragraph and (f)

3

of Title 18 are amended to read:

4

§ 5712.  Issuance of order and effect.

5

(a)  Authorizing orders.--[Each] An order authorizing the

6

interception of any wire, electronic or oral communication shall

7

state the following:

8

* * *

9

(f)  Assistance.--An order authorizing the interception of a

10

wire, electronic or oral communication shall, upon request of

11

the applicant, direct that a provider of [electronic] 

12

communication service shall furnish the applicant forthwith all

13

information, facilities and technical assistance necessary to

14

accomplish the interception unobtrusively and with a minimum of

15

interference with the services that such service provider is

16

affording the person whose communications are to be intercepted.

17

The obligation of a provider of [electronic] communication

18

service under such an order may include, but is not limited to,

19

installation of a pen register or of a trap and trace device

20

[and], providing caller ID, deluxe caller ID or any other

21

features available to ascertain the telephone number, location

22

or subscriber information of a facility contacting the facility

23

whose communications are to be intercepted, disclosure of a

24

record or other information otherwise available under section

25

5743 (relating to requirements for governmental access),

26

including conducting an in-progress trace during an

27

interception, provided that such obligation of a provider of

28

[electronic] communications service is technologically feasible.

29

The order shall apply regardless of whether the electronic

30

service provider is headquartered within this Commonwealth, if

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1

the interception is otherwise conducted within this Commonwealth

2

as provided under this chapter. The order regarding disclosure

3

of a record or other information otherwise available under

4

section 5743 shall apply to all electronic service providers who

5

service facilities which contact or are contacted by the

6

facility whose communications are to be intercepted, regardless

7

of whether the order specifically names any provider of

8

communication service. The order may specify the period of time

9

an electronic service provider has to furnish to the applicant

10

who requests disclosure of a record or other information

11

otherwise available under section 5743. Any provider of

12

[electronic] communication service furnishing such facilities or

13

technical assistance shall be compensated therefor by the

14

applicant for reasonable expenses incurred in providing the

15

facilities or assistance. The service provider shall be immune

16

from civil and criminal liability for any assistance rendered to

17

the applicant pursuant to this section.

18

* * *

19

Section 5.  Title 18 is amended by adding a section to read:

20

§ 5712.1.  Target-specific orders.

21

(a)  Target-specific wiretaps.--The requirements of sections

22

5712(a)(3) (relating to issuance of order and effect) and

23

5709(3)(iv) and (v) (relating to application for order) shall

24

not apply if:

25

(1)  In the case of an application with respect to the

26

interception of an oral communication, all of the following

27

apply:

28

(i)  The application contains a full and complete

29

statement as to why specification is not practical and

30

identifies the person committing the offense and whose

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1

communications are to be intercepted.

2

(ii)  The judge finds the specification is not

3

practical.

4

(2)  In the case of an application with respect to a wire

5

or electronic communication, all of the following apply:

6

(i)  The application identifies the person believed

7

to be committing the offense and whose communications are

8

to be intercepted and the applicant makes a showing that

9

there is probable cause to believe that the person's

10

actions could have the effect of thwarting interception

11

by changing facilities or devices.

12

(ii)  The judge finds that the purpose has been

13

adequately shown.

14

(b)  Supplementary orders.--Following the issuance of a

15

target-specific wiretap order, the judge shall sign

16

supplementary orders upon request and in a timely manner,

17

authorizing the investigative or law enforcement officers or

18

agency to intercept additional communications devices or

19

facilities upon a showing of reasonable suspicion that all of

20

the following apply:

21

(1)  The target of the original order has in fact changed

22

communications devices or facilities or is presently using

23

additional communications devices, communications facilities

24

or places.

25

(2)  The target of the original order is likely to use

26

the specified communications device or facility for criminal

27

purposes similar to or related to those specified in the

28

original order.

29

(c)  Application for supplementary orders.--An application

30

for a supplementary order shall contain all of the following:

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1

(1)  The identity of the investigative or law enforcement

2

officers or agency to whom the authority to intercept wire,

3

electronic or oral communications is given and the name and

4

official identity of the person who made the application.

5

(2)  The identity of or a particular description of the

6

person, if known, whose communications are to be intercepted.

7

(3)  The period of time during which the interception is

8

authorized, including a statement as to whether or not the

9

interception shall automatically terminate when the described

10

communication has been first obtained.

11

(4)  A showing of reasonable suspicion that the target of

12

the original order has in fact changed communications devices

13

or facilities.

14

(5)  A showing of reasonable suspicion that the target of

15

the original order is likely to use the additional facility

16

or device or place for criminal purposes similar to or

17

related to those specified in the original order.

18

(d)  Time limits.-–A supplementary order shall not act as an

19

extension of the time limit identified in section 5712(b).

20

(e)  Responsibility.--The order shall require the Attorney

21

General or the district attorney, or their designees, to be

22

responsible for the supervision of the interception.

23

(f)  Progress reports.--If an order authorizing an

24

interception is entered, the order may require reports to be

25

made to the judge who issued the order showing what progress has

26

been made toward achievement of the authorized objective and the

27

need for continued interception. The reports shall be made at

28

intervals as the judge may require.

29

(g)  Final report.--If an interception is authorized under

30

this section, a complete written list of names of participants

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1

and evidence of offenses discovered, including those not stated

2

in the application for order, shall be filed with the court as

3

soon as practical after the authorized interception is

4

terminated.

5

(h)  Assistance.--

6

(1)  An order authorizing the interception of a wire,

7

electronic or oral communication shall, upon request of the

8

applicant, direct that a provider of communication service

9

furnish the applicant with all information, facilities and

10

technical assistance necessary to accomplish the interception

11

unobtrusively and with a minimum of interference with the

12

services that the service provider is affording the person

13

whose communications are to be intercepted.

14

(2)  The obligation of a provider of communication

15

service under an order may include installation of a pen

16

register or trap and trace device and disclosure of a record

17

or other information otherwise available under section 5743

18

(relating to requirements for governmental access), including

19

conducting an in-progress trace during an interception, if

20

the obligation of a provider of communications service is

21

technologically feasible.

22

(3)  A provider of communication service furnishing

23

facilities or technical assistance shall be compensated by

24

the applicant for reasonable expenses incurred in providing

25

the facilities or assistance.

26

(4)  A service provider shall be immune from civil and

27

criminal liability for any assistance rendered to an

28

applicant under this section.

29

(i)  Entry by law enforcement officers.--An order authorizing

30

the interception of a wire, electronic or oral communication

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1

shall, if requested, authorize the entry of premises or

2

facilities specified under subsection (c)(3) or premises

3

necessary to obtain access to the premises or facilities

4

specified under subsection (c)(3) by law enforcement officers

5

specified under subsection (c)(1) as often as necessary solely

6

for the purposes of installing, maintaining or removing an

7

electronic, mechanical or other device, if all of the following

8

apply:

9

(1)  The entry is reasonably necessary to accomplish the

10

purposes of this subchapter.

11

(2)  The judge who issues the order is notified of the

12

time and method of each entry prior to entry within 48 hours

13

of entry.

14

Section 6.  Section 5713.1(d) of Title 18 is amended to read:

15

§ 5713.1.  Emergency hostage and barricade situations.

16

* * *

17

(d)  Definitions.--As used in this section, the following

18

words and phrases shall have the meanings given to them in this

19

subsection:

20

"Emergency situation."  Any situation where:

21

(1)  a person is holding a hostage and is threatening

22

serious physical injury [will] and may resist with the use of

23

weapons; or

24

(2)  a person has barricaded himself and taken a position

25

of confinement to avoid apprehension and:

26

(i)  has [threatened] the ability to resist with the

27

use of weapons; or

28

(ii)  is threatening suicide or harm to himself or 

29

others.

30

"Supervising law enforcement officer."

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1

(1)  For designations by a district attorney, any law

2

enforcement officer trained pursuant to section 5724

3

(relating to training) to carry out interceptions under this

4

section who has attained the rank of lieutenant or higher in

5

a law enforcement agency within the county or who is in

6

charge of a county law enforcement agency.

7

(2)  For designations by the Attorney General, any member

8

of the Pennsylvania State Police trained pursuant to section

9

5724 to carry out interceptions under this section and

10

designated by the Commissioner of the Pennsylvania State

11

Police who:

12

(i)  has attained the rank of lieutenant or higher;

13

or

14

(ii)  is in charge of a Pennsylvania State Police

15

barracks.

16

Section 7.  Section 5717(a) of Title 18 is amended and the

17

section is amended by adding subsections to read:

18

§ 5717.  Investigative disclosure or use of contents of wire,

19

electronic or oral communications or derivative

20

evidence.

21

(a)  Law enforcement personnel.--Any investigative or law

22

enforcement officer who, under subsection (a.1) [or (b)], (a.2),

<--

23

(b) (b), (b.1) or (c), has obtained knowledge of the contents of

<--

24

any wire, electronic or oral communication, or evidence derived

25

therefrom, may disclose such contents or evidence to another

26

investigative or law enforcement officer to the extent that such

27

disclosure is appropriate to the proper performance of the

28

official duties of the officer making or receiving the

29

disclosure.

30

* * *

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1

(a.2)  Civilians.--Any person other than an investigative or

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2

law enforcement officer who, as party to the communication, has

3

obtained knowledge of the contents of any wire, electronic or

4

oral communication, or evidence derived from any wire,

5

electronic or oral communication, may disclose the contents or

6

evidence to an investigative or law enforcement officer, if the

7

contents or evidence is evidence of a crime of violence or a

8

felony of the first degree.

9

* * *

10

(b.1)  Criminal cases.--Any person who by means authorized by

<--

11

section 5704(17) (relating to exceptions to prohibition of

12

interception and disclosure of communications) has obtained

13

knowledge of the contents of any wire, electronic or oral

14

communication, or evidence derived therefrom, may in addition to

15

disclosures made under subsection (b) disclose such contents or

16

evidence, on the condition that such disclosure is made for the

17

purpose of providing exculpatory evidence in an open or closed

18

criminal case.

19

(c)  Otherwise authorized personnel.--

20

(1)  Except as provided under paragraph (2), any person

21

who, by any means authorized by the laws of another state or

22

the Federal Government, has obtained knowledge of the

23

contents of any wire, electronic or oral communication, or

24

evidence derived from any wire, electronic or oral

25

communication, may disclose the contents or evidence to an

26

investigative or law enforcement officer and may disclose the

27

contents or evidence where otherwise admissible while giving

28

testimony under oath or affirmation in any proceeding in any

29

court of this Commonwealth.

30

(2)  The contents of a nonconsensual interception

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1

authorized by the laws of the Federal Government or another

2

state shall not be admissible unless the interception was

3

authorized by a court upon a finding of probable cause that

4

the target of the surveillance is engaged or will engage in a

5

violation of the criminal laws of the Federal Government or

6

any state.

7

Section 8.  Section 5721.1(a) of Title 18 is amended by

<--

8

adding a paragraph to read:

9

§ 5721.1.  Evidentiary disclosure of contents of intercepted

10

communication or derivative evidence.

11

(a)  Disclosure in evidence generally.--

12

* * *

13

(4)  Notwithstanding any provisions of this subchapter 

14

and if the knowledge was obtained from a person not acting at

15

the direction or with the knowledge and consent of law

16

enforcement, any law enforcement or investigative officer who

17

has obtained knowledge of the contents of any wire,

18

electronic or oral communication, or evidence derived from

19

any wire, electronic or oral communication, may disclose the

20

contents or evidence in any matter related to any criminal,

21

quasi-criminal, forfeiture, administrative enforcement or

22

professional disciplinary proceedings as follows:

23

(i)  In any court, board or agency of this

24

Commonwealth, another state or the United States.

25

(ii)  Before any Federal or state grand jury or

26

investigating grand jury.

27

* * *

28

Section 9 8.  Section 5743(a) and (b) of Title 18 are amended

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29

to read:

30

§ 5743.  Requirements for governmental access.

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1

(a)  Contents of [electronic] communications in electronic

2

storage.--Investigative or law enforcement officers may require

3

the disclosure by a provider of [electronic] communication

4

service of the contents of [an electronic] a communication which

5

is in electronic storage in [an electronic] a communication

6

system for:

7

(1)  One hundred eighty days or less only pursuant to a

8

warrant issued under the Pennsylvania Rules of Criminal

9

Procedure.

10

(2)  More than 180 days by the means available under

11

subsection (b).

12

(b)  Contents of [electronic] communications in a remote

13

computing service.--

14

(1)  Investigative or law enforcement officers may

15

require a provider of remote computing service to disclose

16

the contents of any [electronic] communication to which this

17

paragraph is made applicable by paragraph (2):

18

(i)  without required notice to the subscriber or

19

customer if the investigative or law enforcement officer

20

obtains a warrant issued under the Pennsylvania Rules of

21

Criminal Procedure; or

22

(ii)  with prior notice from the investigative or law

23

enforcement officer to the subscriber or customer if the

24

investigative or law enforcement officer:

25

(A)  uses an administrative subpoena authorized

26

by a statute or a grand jury subpoena; or

27

(B)  obtains a court order for the disclosure

28

under subsection (d);

29

except that delayed notice may be given pursuant to section

30

5745 (relating to delayed notice).

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1

(2)  Paragraph (1) is applicable with respect to [an

2

electronic] a communication which is held or maintained on

3

that service:

4

(i)  On behalf of and received by means of electronic

5

transmission from, or created by means of computer

6

processing of communications received by means of

7

electronic transmission from, a subscriber or customer of

8

the remote computing service.

9

(ii)  Solely for the purpose of providing storage or

10

computer processing services to the subscriber or

11

customer, if the provider is not authorized to access the

12

contents of any such communication for the purpose of

13

providing any services other than storage or computer

14

processing.

15

* * *

16

Section 10 9.  Section 5746 of Title 18 is amended by adding

<--

17

a subsection to read:

18

§ 5746.  Cost reimbursement.

19

* * *

20

(d)  Regulations.--The Attorney General shall promulgate

21

regulations to implement this section.

22

Section 11 10.  Sections 5761(b) and (c)(4), 5772(a) and

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23

5773(a) and (c) of Title 18 are amended to read:

24

§ 5761.  Mobile tracking devices.

25

* * *

26

(b)  Jurisdiction.--Orders permitted by this section may

27

authorize the use of mobile tracking devices [within the

28

jurisdiction of the court of common pleas, and outside that

29

jurisdiction,] if the device is installed and monitored within

30

[the jurisdiction of the court of common pleas.] this

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1

Commonwealth. The court issuing the order must have jurisdiction

2

over the offense under investigation.

3

(c)  Standard for issuance of order.--An order authorizing

4

the use of one or more mobile tracking devices may be issued to

5

an investigative or law enforcement officer by the court of

6

common pleas upon written application. Each application shall be

7

by written affidavit, signed and sworn to or affirmed before the

8

court of common pleas. The affidavit shall:

9

* * *

10

(4)  provide a statement setting forth all facts and

11

circumstances which provide the applicant with [a reasonable

12

suspicion] probable cause that criminal activity has been, is

13

or will be in progress and that the use of a mobile tracking

14

device will yield information relevant to the investigation

15

of the criminal activity.

16

* * *

17

§ 5772.  Application for an order for use of certain devices.

18

(a)  Application.--The Attorney General or a deputy attorney

19

general designated in writing by the Attorney General or a

20

district attorney or an assistant district attorney designated

21

in writing by the district attorney may make application for an

22

order or an extension of an order under section 5773 (relating

23

to issuance of an order for use of certain devices) authorizing

24

or approving disclosure of mobile communications tracking

25

information or, if necessary, the production and disclosure of

26

mobile communications tracking information, the installation and

27

use of a pen register, a trap and trace device or a

28

telecommunication identification interception device under this

29

subchapter, in writing, under oath or equivalent affirmation, to

30

a court of common pleas having jurisdiction over the offense

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1

under investigation or to any Superior Court judge when an

2

application for an order authorizing interception of [wire or

3

electronic] communications is or has been made for the targeted

4

telephone or another application for interception under this

5

subchapter has been made involving the same investigation.

6

* * *

7

§ 5773.  Issuance of an order for use of certain devices.

8

(a)  In general.--Upon an application made under section 5772

9

(relating to application for an order for use of certain

10

devices), the court shall enter an ex parte order authorizing

11

the disclosure of mobile communications tracking information, 

12

the installation and use of a pen register, a trap and trace

13

device or a telecommunication identification interception device

14

within [the jurisdiction of the court if the court] this

15

Commonwealth if the court finds that there is probable cause to

16

believe that information relevant to an ongoing criminal

17

investigation will be obtained by such installation and use on

18

the targeted telephone. If exigent circumstances exist, the

19

court may verbally authorize the disclosure of mobile

20

communications tracking information, the installation and use of

21

a pen register, a trap and trace device or a telecommunication

22

identification interception device. The written order

23

authorizing the disclosure must be entered within 72 hours of

24

the court's verbal authorization.

25

* * *

26

(c)  Time period and extensions.--

27

(1)  An order issued under this section shall authorize

28

the installation and use of a pen register, trap and trace

29

device or a telecommunication identification interception

30

device for a period not to exceed [30] 60 days.

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1

(2)  Extensions of such an order may be granted but only

2

upon an application for an order under section 5772 and upon

3

the judicial finding required by subsection (a). The period

4

of each extension shall be for a period not to exceed 30

5

days.

6

* * *

7

Section 12 11.  This act shall take effect in 60 days.

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