July 12, 2017, Introduced by Rep. Lucido and referred to the Committee on Judiciary.
A bill to amend 1966 PA 189, entitled
"An act to provide procedures for making complaints for, obtaining,
executing and returning search warrants; and to repeal certain acts
and parts of acts,"
by amending section 1 (MCL 780.651), as amended by 2014 PA 383, and
by adding section 1a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. (1) When an affidavit is made on oath to a judge or
district court magistrate authorized to issue warrants in criminal
cases, and the affidavit establishes grounds for issuing a warrant
under this act, the judge or district court magistrate, if he or
she is satisfied that there is probable cause for the search, shall
issue a warrant to search the house, building, or other location or
place where the person, property, or thing to be searched for and
seized is situated.
(2) An affidavit for a search warrant may be made by any
electronic or electromagnetic means of communication, including by
facsimile or over a computer network, if both of the following
occur:
(a) The judge or district court magistrate orally administers
the oath or affirmation to an applicant for a search warrant who
submits an affidavit under this subsection.
(b) The affiant signs the affidavit. Proof that the affiant
has signed the affidavit may consist of an electronically or
electromagnetically transmitted facsimile of the signed affidavit
or an electronic signature on an affidavit transmitted over a
computer network.
(3) A judge or district court magistrate may issue a written
search warrant in person or by any electronic or electromagnetic
means of communication, including by facsimile or over a computer
network.
(4) A judge or district court magistrate may sign an
electronically issued search warrant when he or she is at any
location in this state.
(5) The peace officer or department receiving an
electronically
or electromagnetically issued search warrant shall
must receive proof that the issuing judge or district court
magistrate has signed the warrant before the warrant is executed.
Proof that the issuing judge or district court magistrate has
signed the warrant may consist of an electronically or
electromagnetically transmitted facsimile of the signed warrant or
an electronic signature on a warrant transmitted over a computer
network.
(6) If an oath or affirmation is orally administered by
electronic or electromagnetic means of communication under this
section, the oath or affirmation is considered to be administered
before the judge or district court magistrate.
(7) If an affidavit for a search warrant is submitted by
electronic or electromagnetic means of communication, or a search
warrant is issued by electronic or electromagnetic means of
communication, the transmitted copies of the affidavit or search
warrant are duplicate originals of the affidavit or search warrant
and are not required to contain an impression made by an impression
seal.
(8) Except as provided in subsection (9), an affidavit for a
search warrant contained in any court file or court record
retention system is nonpublic information.
(9) On the fifty-sixth day following the issuance of a search
warrant, the search warrant affidavit contained in any court file
or court record retention system is public information unless,
before the fifty-sixth day after the search warrant is issued, a
peace officer or prosecuting attorney obtains a suppression order
from a judge or district court magistrate upon a showing under oath
that suppression of the affidavit is necessary to protect an
ongoing investigation or the privacy or safety of a victim or
witness. The suppression order may be obtained ex parte in the same
manner that the search warrant was issued. An initial suppression
order issued under this subsection expires on the fifty-sixth day
after the order is issued. A second or subsequent suppression order
may be obtained in the same manner as the initial suppression order
and shall expire on a date specified in the order. This subsection
and subsection (8) do not affect a person's right to obtain a copy
of a search warrant affidavit from the prosecuting attorney or law
enforcement agency under the freedom of information act, 1976 PA
442, MCL 15.231 to 15.246.
(10) This section does not apply to the following, except as
provided in section 1a:
(a) Compelling the production of or access to electronic
communication information from a service provider.
(b) Compelling the production of or access to electronic
device information from any person or entity other than the
authorized possessor of the device.
(c) Accessing electronic device information by means of
physical interaction or electronic communication with the
electronic device.
(d) The public release of information contained in an
affidavit and warrant issued under section 1a.
Sec. 1a. (1) Except as otherwise provided under this section,
a governmental entity may compel the production of or access to
electronic communication information from a service provider or
compel the production of or access to electronic device information
from a person or entity other than the authorized possessor of the
device only after first obtaining a warrant under this section.
(2) A governmental entity may access electronic device
information by means of physical interaction or electronic
communication with the device only as follows:
(a) With the specific consent of the authorized possessor of
the device.
(b) With the specific consent of the owner of the device, only
if the device has been reported as lost or stolen.
(c) If the governmental entity, in good faith, reasonably
believes that an emergency involving imminent danger of death or
serious physical injury to any person requires access to the
electronic device information.
(d) If the governmental entity, in good faith, reasonably
believes the device to be lost, stolen, or abandoned, provided that
the entity shall only access electronic device information in order
to attempt to identify, verify, or contact the owner or authorized
possessor of the device.
(e) Except where prohibited by law, if the device is seized
from an inmate's possession or found in an area of a correctional
facility under the jurisdiction of the department of corrections
where inmates have access and the device is not in the possession
of an individual and the device is not known or believed to be the
possession of an authorized visitor. Nothing in this subdivision
supersedes or overrides section 2a of 1981 PA 7, MCL 801.262a.
(3) A warrant for electronic information must comply with all
the following requirements:
(a) It describes with particularity the information to be
seized by specifying the time periods covered and, as appropriate
and reasonable, the target individuals or accounts, the
applications or services covered, and the types of information
sought.
(b) It requires that any information obtained through the
execution of the warrant that is unrelated to the objective of the
warrant must be sealed and not subject to further review, use, or
disclosure without a court order. A court shall issue such an order
upon a finding that there is probable cause to believe that the
information is relevant to the commission of a crime, or review,
use, or disclosure is required by state or federal law.
(c) It complies with the laws of this state and of the United
States, including any provisions prohibiting, limiting, or imposing
additional requirements on the use of search warrants. If directed
to a service provider, the warrant must be accompanied by an order
requiring the service provider to verify the authenticity of
electronic information that it produces.
(4) When issuing any warrant for electronic information, or
upon the petition from the target or recipient of the warrant or
order, a court may, at its discretion, require that any information
obtained through the execution of the warrant that is unrelated to
the objective of the warrant be destroyed as soon as feasible after
the termination of the current investigation and any related
investigations or proceedings.
(5) A service provider may voluntarily disclose electronic
communication information or subscriber information when that
disclosure is not otherwise prohibited by law. If information is
disclosed under this subsection, the service provider shall notify
the subscriber to whom the information pertains not more than 30
days after the disclosure. The notice shall include a list of the
information that was disclosed.
(6) If a governmental entity receives electronic communication
information voluntarily provided under subsection (5), it shall
destroy that information within 90 days unless 1 or more of the
following circumstances apply:
(a) The governmental entity has or obtains the specific
consent of the sender or recipient of the electronic communications
about what information was disclosed.
(b) The governmental entity obtains a court order authorizing
the retention of the information. A court shall issue a retention
order upon a finding that the conditions justifying the initial
voluntary disclosure persist, in which case the court shall
authorize the retention of the information only for so long as
those conditions persist, or there is probable cause to believe
that the information constitutes evidence that a crime has been
committed.
(c) The governmental entity reasonably believes that the
information relates to child pornography.
(7) If a governmental entity obtains electronic information in
an emergency that involves imminent danger of death or serious
physical injury to a person and that requires access to the
electronic information without delay, the entity shall, within 7
days after obtaining the electronic information, file with the
appropriate court an application for a warrant authorizing the
obtaining of the electronic information or a motion seeking
approval of the emergency disclosures that sets forth the facts
giving rise to the emergency and, if applicable, a request
supported by a sworn affidavit for an order delaying notification
under subsection (10). The court shall promptly rule on the
application or motion and shall order the immediate destruction of
all information obtained, and immediate notification under
subsection (9) if notice has not already been given, upon a finding
that the facts did not give rise to an emergency or upon rejecting
the warrant or order application on any other ground.
(8) This section does not limit the authority of a
governmental entity to use an administrative, grand jury, trial, or
civil discovery subpoena to do 1 or more of the following:
(a) Require an originator, addressee, or intended recipient of
an electronic communication to disclose any electronic
communication information associated with that communication.
(b) Require an entity that provides electronic communication
services to its officers, directors, employees, or agents for the
purpose of carrying out their duties, to disclose electronic
communication information associated with an electronic
communication to or from an officer, director, employee, or agent
of the entity.
(c) Require a service provider to provide subscriber
information.
(9) Except as otherwise provided in this section, a
governmental entity that executes a warrant, or obtains electronic
information in an emergency under subsection (7), shall serve upon,
or deliver to by registered or first-class mail, electronic mail,
or other means reasonably calculated to be effective, the
identified targets of the warrant or emergency request, a notice
that informs the recipient that information about the recipient has
been compelled or requested and states with reasonable specificity
the nature of the government investigation under which the
information is sought. The notice must include a copy of the
warrant or a written statement setting forth facts giving rise to
the emergency. The notice must be provided contemporaneously with
the execution of a warrant or, in the case of an emergency, within
7 days after obtaining the electronic information.
(10) When a warrant is sought or electronic information is
obtained in an emergency under subsection (7), the governmental
entity may submit a request supported by a sworn affidavit for an
order delaying notification and prohibiting any party providing
information from notifying another party that information has been
sought. The court shall issue the order if the court determines
that there is reason to believe that notification may have an
adverse result, but only for the period of time that the court
finds that there is reason to believe that the notification may
have that adverse result, and not to exceed 90 days. The court may
grant extensions of the delay for not more than 90 days each on the
same grounds as provided in this subsection. Upon expiration of the
period of delay of the notification, the governmental entity shall
serve upon, or deliver to by registered or first-class mail,
electronic mail, or other means reasonably calculated to be
effective as specified by the court issuing the order authorizing
delayed notification, the identified targets of the warrant, a
document that includes the information described in subsection (9),
a copy of all electronic information obtained or a summary of that
information, including, at a minimum, the number and types of
records disclosed, the date and time when the earliest and latest
records were created, and a statement of the grounds for the
court's determination to grant a delay in notifying the individual.
(11) If there is no identified target of a warrant or
emergency request at the time of its issuance, the governmental
entity shall submit to the attorney general within 7 days of the
execution of the warrant or issuance of the request all of the
information required in subsection (9). If an order delaying notice
is obtained under subsection (10), the governmental entity shall
submit to the attorney general upon the expiration of the period of
delay of the notification all of the information required in
subsection (10). The attorney general shall publish the information
submitted to the attorney general under this subsection on its
internet website not more than 90 days after receipt. The attorney
general may redact names or other personal identifying information
from the information on its internet website.
(12) Except as otherwise provided in this section, nothing in
this act prohibits or limits a service provider or any other party
from disclosing information about a request or demand for
electronic information.
(13) A person in a trial, hearing, or proceeding may move to
suppress any electronic information obtained or retained in
violation of the Fourth Amendment to the Constitution of the United
States, section 11 of article I of the state constitution of 1963,
or this section.
(14) The attorney general may commence a civil action to
compel any government entity to comply with the provisions of this
section.
(15) An individual whose information is targeted by a warrant,
order, or other legal process that is inconsistent with this
section, the state constitution of 1963, or the Constitution of the
United States, a service provider, or any other recipient of the
warrant, order, or other legal process may petition the issuing
court to void or modify the warrant, order, or process, or to order
the destruction of any information obtained in violation of this
section, the state constitution of 1963, or the Constitution of the
United States.
(16) As used in this section:
(a) "Adverse result" means any of the following:
(i) Danger to the life or physical safety of an individual.
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Serious jeopardy to an investigation or undue delay of a
trial.
(b) "Authorized possessor" means the possessor of an
electronic device if that person is the owner of the device or has
been authorized to possess the device by the owner of the device.
(c) "Electronic communication" means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of any
nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system.
(d) "Electronic communication information" means any
information about an electronic communication or the use of an
electronic communication service, including, but not limited to,
the contents, sender, recipients, format, or location of the sender
or recipients at any point during the communication, the time or
date the communication was created, sent, or received, or any
information pertaining to any individual or device participating in
the communication, including, but not limited to, an IP address.
Electronic communication information does not include subscriber
information as defined in this section.
(e) "Electronic communication service" means a service that
provides to its subscribers or users the ability to send or receive
electronic communications, including any service that acts as an
intermediary in the transmission of electronic communications, or
stores electronic communication information.
(f) "Electronic device" means a device that stores, generates,
or transmits information in electronic form.
(g) "Electronic device information" means any information
stored on or generated through the operation of an electronic
device, including the current and prior locations of the device.
(h) "Electronic information" means electronic communication
information or electronic device information.
(i) "Governmental entity" means a department or agency of this
state or a political subdivision of this state, or an individual
acting for or on behalf of this state or a political subdivision of
this state.
(j) "Service provider" means a person or entity offering an
electronic communication service.
(k) "Specific consent" means consent provided directly to the
government entity seeking information, including, but not limited
to, when the governmental entity is the addressee or intended
recipient or a member of the intended audience of an electronic
communication. Specific consent does not require that the
originator of the communication have actual knowledge that an
addressee, intended recipient, or member of the specific audience
is a governmental entity.
(l) "Subscriber information" means the name, street address,
telephone number, electronic mail address, or similar contact
information provided by the subscriber to the provider to establish
or maintain an account or communication channel, a subscriber or
account number or identifier, the length of service, and the types
of services used by a user of or subscriber to a service provider.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.