2013-2014 Bill 4791: Electronic Data Privacy Protection Act - South Carolina Legislature Online

1 South Carolina General Assembly 2 120th Session, 2013-2014 3 4 H. 4791 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Reps. G.R. Smith, Rutherford, Bedingfield, Atwater, Putnam, Southard, Knight, Jefferson, 10 Bowers, J.R. Smith, Hamilton, Bingham, McCoy, Willis, Quinn, Newton, Norrell, Bannister, Burns, 11 Chumley, Delleney, Forrester, Harrell, Henderson, Hixon, Kennedy, Loftis, Lowe, Lucas, V.S. Moss, 12 Owens, Pitts, Sandifer, Simrill, G.M. Smith, Stringer, White, Whitmire, Williams and Wood 13 Document Path: l:\council\bills\bh\26092dg14.docx 14 15 Introduced in the House on February 26, 2014 16 Introduced in the Senate on May 6, 2014 17 Last Amended on April 30, 2014 18 Currently residing in the Senate Committee on Judiciary 19 20 Summary: Electronic Data Privacy Protection Act 21 22 23 HISTORY OF LEGISLATIVE ACTIONS 24 25 Date Body Action Description with journal page number 26 2/26/2014 House Introduced and read first time ( House Journalpage 59) 27 2/26/2014 House Referred to Committee on Judiciary ( House Journalpage 59) 28 4/2/2014 House Committee report: Favorable with amendment Judiciary ( House Journalpage 105) 29 4/3/2014 House Requests for debateRep(s). Delleney, Owens, Bannister, Finlay, Hiott, Tallon, GR 30 Smith, Quinn, Ryhal, Cole, Loftis, Forrester, RL Brown, JE Smith, Weeks (House 31 Journalpage 35) 32 4/3/2014 Scrivener's error corrected 33 4/10/2014 House Debate adjourned until Tues., 42914 ( House Journalpage 146) 34 4/29/2014 House Debate adjourned until Wed., 43014 ( House Journalpage 39) 35 4/30/2014 House Amended ( House Journalpage 110) 36 4/30/2014 House Read second time ( House Journalpage 110) 37 4/30/2014 House Roll call Yeas89 Nays17 ( House Journalpage 124) 38 5/1/2014 House Read third time and sent to Senate ( House Journalpage 48) 39 5/6/2014 Senate Introduced and read first time ( Senate Journalpage 6) 40 5/6/2014 Senate Referred to Committee on Judiciary ( Senate Journalpage 6) 41 42 43 VERSIONS OF THIS BILL 44 45 2/26/2014 46 4/2/2014 47 4/3/2014 48 4/30/2014 49 1 AMENDED 2 April 30, 2014 3 4 H. 4791 5 6 Introduced by Reps. G.R. Smith, Rutherford, Bedingfield, Atwater, 7 Putnam, Southard, Knight, Jefferson, Bowers, J.R. Smith, 8 Hamilton, Bingham, McCoy, Willis, Quinn, Newton, Norrell, 9 Bannister, Burns, Chumley, Delleney, Forrester, Harrell, 10 Henderson, Hixon, Kennedy, Loftis, Lowe, Lucas, V.S. Moss, 11 Owens, Pitts, Sandifer, Simrill, G.M. Smith, Stringer, White, 12 Whitmire, Williams and Wood 13 14 S. Printed 4/30/14--H. 15 Read the first time February 26, 2014. 16 17

[4791-2] 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 12 1976, TO ENACT THE “ELECTRONIC DATA PRIVACY 13 PROTECTION ACT” BY ADDING CHAPTER 53 TO TITLE 23, 14 SO AS TO PROVIDE THAT AN ENTITY MAY NOT SEARCH 15 AN ELECTRONIC DEVICE WITHOUT A SEARCH 16 WARRANT, TO PROVIDE EXCEPTIONS, AND TO PROVIDE 17 CERTAIN NOTICE REQUIREMENTS. 18 Amend Title To Conform 19 20 Be it enacted by the General Assembly of the State of South 21 Carolina: 22 23 SECTION 1. Title 23 of the 1976 Code is amended by adding: 24 25 “CHAPTER 53 26 27 Electronic Data Privacy Protection Act 28 29 Section 235310. This chapter may be cited as the ‘Electronic 30 Data Privacy Protection Act’. 31 32 Section 235320. The purpose of this chapter is to clarify 33 requirements for searches of electronic messages, mobile devices 34 incident to arrest, and obtaining geolocation information. 35 36 Section 235330. As used in this chapter, unless the context 37 clearly indicates otherwise: 38 (1) ‘Electronic communication’ means any transfer of signs, 39 signals, writing, images, sounds, data, or intelligence of any nature 40 transmitted in whole or in part by a wire, radio, electromagnetic, 41 photoelectronic, photooptical system, or any other device that

[4791] 3 1 affects intrastate, interstate, or foreign commerce, but does not 2 include: 3 (a) any wire or oral communication; 4 (b) any communication made through a toneonly paging 5 device; or 6 (c) any communication from an electronic or mechanical 7 device, except a cell phone, which permits the tracking of the 8 movement of a person or an object. 9 (2) ‘Electronic communication service’ means a service that 10 provides to users the ability to send or receive wire or electronic 11 communications. 12 (3) ‘Electronic device’ means a device that contains electronic 13 data; or enables access to, or use of, an electronic communication 14 service, remote computing service, or geolocation information 15 service; or a radiofrequency identification chip or other 16 transponder. 17 (4) ‘Electronic storage’ means any storage of electronic data on 18 a computer, computer network, or computer system, regardless of 19 whether the data is subject to recall, further manipulation, deletion, 20 or transmission, and includes any storage or electronic 21 communication by an electronic communications service or a 22 remote computing service, as well as temporary intermediate 23 storage of electronic data or information incidental to the 24 electronic transmission of electronic data or communication. 25 (5) ‘Electronic data’ means data or records that are in the 26 possession, care, custody, or control of a provider of an electronic 27 communications service, a remote computing service, or 28 geolocation information service, that contains: 29 (a) information revealing the identity of the owner, operator, 30 or subscriber of the applicable service, device, or program; 31 (b) information about the owner’s, operator’s, or 32 subscriber’s use of the applicable service, device, or program; 33 (c) information that identifies the recipient or destination of 34 an electronic communication sent to or by the owner, operator, or 35 subscriber; 36 (d) the content of an electronic communication sent to or by 37 the owner, operator, or subscriber; or 38 (e) any data, documents, files, or communications stored by 39 or on behalf of the owner, operator, or subscriber with the 40 applicable service provider or on the owner’s, operator’s, or 41 subscriber’s electronic device. 42 (6) ‘Geolocation information’ means any information that is 43 not the content of a communication concerning the location of an

[4791] 4 1 electronic device that, in whole or in part, is generated by or 2 derived from the operation or tracking of that device and that could 3 be used to determine or infer information regarding the location of 4 the person, but does not include Internet protocol addresses. 5 (7) ‘Geolocation information service’ means the provision of a 6 global positioning service or other mapping, locational, or 7 directional information service to the public, or to such class of 8 users as to be effectively available to the public, by or through the 9 operation of any wireless communication device, including any 10 electronic device, global positioning system receiving device, or 11 other similar or successor device. 12 (8) ‘Governmental entity’ means the State or any of its 13 political subdivisions, including school districts. 14 (9) ‘Remote computing service’ means, as defined in 18 U.S.C. 15 Section 2711(2), the provision to the public of computer storage or 16 processing services by means of an electronic communications 17 system, as defined in 18 U.S.C. Section 2510(14). 18 (10) ‘Vulnerable adult’ means a person eighteen years of age or 19 older who has a physical or mental condition which substantially 20 impairs the person from adequately providing for his or her own 21 care or protection. This includes a person who is impaired in the 22 ability to adequately provide for the person’s own care or 23 protection because of the infirmities of aging including, but not 24 limited to, organic brain damage, advanced age, and physical, 25 mental, or emotional dysfunction. A resident of an operated or 26 contracted facility, as defined in Section 433510, is a vulnerable 27 adult. 28 29 Section 235340. (A) Except as provided in this chapter or 30 another provision of law, a governmental entity may not conduct a 31 search of an electronic device in the possession of an individual 32 incident to a lawful custodial arrest without a valid search warrant 33 or court order issued by a duly authorized judge or justice using 34 state warrant procedures and based upon probable cause or without 35 a court order issued by a duly authorized judge or justice based 36 upon probable cause, except: 37 (1) with the consent of the owner, operator, or subscriber of 38 the electronic device; 39 (2) in exigent circumstances that would cause a reasonable 40 person to believe that a search is necessary to prevent physical 41 harm to the officers or other persons, the destruction of evidence, 42 or the escape of a suspect; or

[4791] 5 1 (3) when the electronic device has been abandoned by the 2 owner, operator, or subscriber. 3 (B) If an electronic device is searched pursuant to subsection 4 (A)(2), the law enforcement agency shall notify a court of record 5 of the search within two business days of the search being 6 performed. 7 (C) A governmental entity may not obtain geolocation 8 information revealing the past, present, or future location of an 9 electronic device except: 10 (1) with a valid search warrant or court order issued by a 11 duly authorized judge or justice using state warrant procedures and 12 based upon probable cause or with a court order issued by a duly 13 authorized judge or justice based upon probable cause; 14 (2) with the consent of a parent or legal guardian of a minor, 15 vulnerable adult, or person adjudicated to be mentally incompetent 16 to whom the geolocation information pertains; 17 (3) when such geolocation information is accessed through a 18 system that is configured so that such information is readily 19 accessible to the general public; or 20 (4) when such geolocation information is accessed because 21 of exigent circumstances that would cause a reasonable person to 22 believe that a such information is necessary to prevent physical 23 harm to the officers or other persons or the escape of a suspect; 24 (5) to locate a stolen electronic device with the consent of 25 the owner, operator, or subscriber of such device; or 26 (6) in an emergency, if the geolocation information is used 27 to respond to a request for assistance from the person to whom the 28 information pertains. 29 (D) If a law enforcement agency obtains geolocation 30 information pursuant to subsection (C)(4), the law enforcement 31 agency shall notify a court of record of the information being 32 obtained within two business days, unless the court orders 33 otherwise. 34 (E)(1) A search warrant, order from a court of record, or a 35 subpoena may be issued for electronic data, including the contents 36 of and records and other information related to electronic 37 communication held in electronic storage, by a provider of an 38 electronic communications service or a provider of a remote 39 computing service regardless of whether the owner’s, operator’s, 40 or subscriber’s data is held at a location in this State or at a 41 location in another state. 42 (2) A search warrant, order from a court of record, or a 43 subpoena issued pursuant to this chapter may be served only on a

[4791] 6 1 service provider that is a domestic entity or a company or entity 2 otherwise doing business in the United States under a contract or 3 terms of service agreement with a resident of the United States, if 4 any part of that contract or agreement is to be performed in this 5 State, and the service provider shall produce all information sought 6 regardless of where the information is held and within the period 7 allowed for by law for compliance with the warrant or the order 8 from the court of record. 9 (F)(1) A governmental entity may not compel an electronic 10 communication service or remote computing service to disclose 11 the content of a user’s communications without a valid search 12 warrant or court order issued by a duly authorized judge or justice 13 using state warrant procedures and based upon probable cause or 14 without a court order issued by a duly authorized judge or justice 15 based upon probable cause. 16 (2) Notwithstanding item (1), an electronic communication 17 service or remote computing service may disclose the content of a 18 user’s communications to a governmental entity: 19 (a) to an addressee or intended recipient of such 20 communication or an agent of such addressee or intended 21 recipient; 22 (b) with the lawful consent of the originator or an 23 addressee or intended recipient of such communication, or the 24 subscriber in the case of remote computing service; 25 (c) to a person employed or authorized or whose facilities 26 are used to forward such communication to its destination; 27 (d) as may be necessarily incident to the rendition of the 28 service or to the protection of the rights or property of the provider 29 of that service; 30 (e) to the National Center for Missing and Exploited 31 Children, in connection with a report submitted pursuant to 18 32 U.S.C. Section 2258A; 33 (f) to a law enforcement agency, if the contents: 34 (i) were inadvertently obtained by the service provider; 35 and 36 (ii) appear to pertain to the commission of a crime; and 37 (g) to a governmental entity, if the provider, in good faith, 38 believes that an emergency involving danger of death or serious 39 physical injury to any person requires disclosure without delay of 40 communications relating to the emergency. 41 42 Section 235360. (A) Nothing in this chapter shall be interpreted 43 to affect the rights and responsibilities of providers of an electronic

[4791] 7 1 communication service, geolocation information service, remote 2 computing service, or a governmental entity conferred by 18 3 U.S.C. Section 2702 (a)(c), 47 U.S.C. Section 222, or a lawful 4 exception to the warrant requirement. 5 (B) A provider of geolocation information service, electronic 6 communication service, or remote computing services may divulge 7 geolocation information pertaining to the owner, operator, or 8 subscriber of such service to a governmental entity, if the provider, 9 in good faith, believes that an emergency involving danger of 10 death or serious physical injury to any person requires disclosure 11 without delay of geolocation information relating to the 12 emergency. 13 (C) No later than two business days after seeking disclosure of 14 information pursuant to subsection (B), the governmental entity 15 seeking to conduct the search or obtain the geolocation 16 information shall file with the appropriate court a written statement 17 setting forth the facts giving rise to the emergency and the facts as 18 to why the information sought is believed to be important in 19 addressing the emergency. 20 21 Section 235370. No cause of action shall lie in any court of this 22 State against any provider of an electronic communications 23 service, remote computing service, or geolocation information 24 service, or its officers, employees, agents, or other specified 25 persons for providing information, facilities, or assistance in 26 accordance with the terms of a warrant, order from a court of 27 record or subpoena, or exception pursuant to this chapter. 28 29 Section 235380. An original or certified copy of electronic data 30 produced pursuant to a warrant or exception in accordance with 31 this chapter shall be selfauthenticating and admissible into 32 evidence as provided. 33 34 Section 235390. The South Carolina Law Enforcement Division 35 shall promulgate regulations pursuant to this chapter so as to 36 provide uniform guidelines and training programs for law 37 enforcement agencies that perform searches of electronic messages 38 or mobile devices incident to arrest, and that obtain geolocation 39 information. Law enforcement agencies that perform searches of 40 electronic messages or mobile devices incident to arrest, and that 41 obtain geolocation information shall use the regulations developed 42 by the Criminal Justice Academy to provide written guidelines and 43 to provide training programs for its officers and employees

[4791] 8 1 regarding the requirements for searches of electronic messages, 2 mobile devices incident to arrest, and obtaining geolocation 3 information. 4 5 Section 2353100. (A) Nothing in this chapter shall be 6 interpreted or construed to pertain to the use of electronic 7 monitoring devices that are pursuant to conditions of bond, home 8 detention, probation, parole, being categorized as a sex offender, or 9 any other court ordered or statutory mandate. 10 (B) Nothing in this chapter shall restrict or limit agents of the 11 Department of Corrections, Department of Juvenile Justice, and 12 Department of Probation, Parole and Pardon Services from the 13 authority to conduct searches of electronic devices and receive 14 electronic data from electronic communication services for 15 offenders under supervision. 16 (C) The provisions of this chapter shall not apply to a 17 government entity’s search of electronic devices determined to be 18 contraband pursuant to Section 243950.” 19 20 SECTION 2. The repeal or amendment by this act of any law, 21 whether temporary or permanent or civil or criminal, does not 22 affect pending actions, rights, duties, or liabilities founded thereon, 23 or alter, discharge, release or extinguish any penalty, forfeiture, or 24 liability incurred under the repealed or amended law, unless the 25 repealed or amended provision shall so expressly provide. After 26 the effective date of this act, all laws repealed or amended by this 27 act must be taken and treated as remaining in full force and effect 28 for the purpose of sustaining any pending or vested right, civil 29 action, special proceeding, criminal prosecution, or appeal existing 30 as of the effective date of this act, and for the enforcement of 31 rights, duties, penalties, forfeitures, and liabilities as they stood 32 under the repealed or amended laws. 33 34 SECTION 3. This act takes effect upon approval by the 35 Governor. 36 XX 37

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