HB17 Alabama 2021 Session

This bill would authorize the Attorney General to submit an application to a circuit court judge to intercept any wire or electronic communication if there is probable cause to believe an individual is committing, has committed, or is about to commit certain felony drug offenses

This bill would specify the procedures for obtaining an intercept order, the information that must be included in an intercept order, the limitations of an intercept order, and the means by which the communication is to be intercepted

This bill would provide for the extension of intercept orders under certain conditions and would prohibit the destruction of recorded communications for a specified time frame

This bill would allow an investigative officer to submit a written request to the Attorney General, through the Secretary of the Alabama State Law Enforcement Agency, requesting the Attorney General apply for an intercept order

This bill would specify under what conditions recorded communications may be disclosed and would provide civil and criminal penalties for certain unauthorized disclosures

This bill would also provide for the sealing of certain records relating to the use of pen registers and trap and trace devices and would provide penalties for unauthorized disclosures

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment

However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment

Relating to wiretapping; to add a new Chapter 2A to Title 20, Code of Alabama 1975; to authorize the Attorney General to submit an application to a circuit court judge to intercept any wire or electronic communication under certain circumstances; to specify the procedures for obtaining an intercept order, the information that must be included in an intercept order, the limitations of an intercept order, and the means by which the communication is to be intercepted; to provide for the extension of intercept orders under certain conditions; to prohibit the destruction of recorded communications for a specified time frame; to allow an investigative officer to submit a written request to the Attorney General, through the Secretary of the Alabama State Law Enforcement Agency, requesting the Attorney General apply for an intercept order; to specify under what conditions recorded communications may be disclosed; to provide for civil and criminal penalties for violations; to amend Section 15-5-40, Code of Alabama 1975, to provide for the sealing of certain records relating to pen registers and trap and trace devices; to provide penalties for unauthorized disclosures; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

Section 1

This act shall be known and may be cited as the Agent Billy Clardy III Act.

Section 2

Chapter 2A, commencing with Sections 20-2A-1, is added to Title 20, Code of Alabama 1975, to read as follows: §20-2A-1. For the purposes of this chapter, the following terms shall have the following meanings: (1) AGENCY. Alabama State Law Enforcement Agency. (2) AGGRIEVED PERSON. A person who was a party to an intercepted wire or electronic communication or a person against whom the interception was directed. (3) ATTORNEY GENERAL. The Attorney General of the State of Alabama or his or her designee. (4) COMMUNICATION COMMON CARRIER. The term as defined in 47 U.S.C. §153(11) or a provider of communication services. (5) CONTENTS. When used with respect to a wire or electronic communication, any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication. (6) ELECTRONIC COMMUNICATION. Any transfer of an electronic or other signal, including any fax signal, computer generated signal, other similar signal, or scrambled or encrypted signal transferred via wire, radio, electromagnetic, photoelectric, or photo optical system from one party to another in which the involved parties may reasonably expect the communication to be private. (7) ELECTRONIC, MECHANICAL, OR OTHER DEVICE. A device or apparatus primarily designed or used for the nonconsensual interception of wire or electronic communications. (8) INTERCEPT. The aural or other acquisition of the contents of a wire or electronic communication through the use of an electronic, mechanical, or other device. (9) INVESTIGATIVE OFFICER. A special agent of the agency, a special agent of the Attorney General's office, or any other law enforcement officer designated by the secretary of the agency who meets guidelines established by the secretary and who has successfully completed a training course approved by the Attorney General on the legal and technical aspects of the interception and use of wire or electronic communications. (10) JUDGE OF COMPETENT JURISDICTION. A circuit court judge in the county where the intercept is expected to take place or where the interception takes place. (11) PROSECUTOR. A district attorney or his or her designee. (12) SECRETARY. The Secretary of the Alabama State Law Enforcement Agency or his or her designee. (13) WIRE COMMUNICATION. A communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by a person engaged as a common carrier in providing or operating the facilities for the transmission of communications. §20-2A-2. (a) No individual or other agency, other than the Alabama State Law Enforcement Agency, may own or possess an electronic, mechanical, or other device as defined in Section 20-2A-1. (b) Only investigative officers, as defined in Section 20-2A-1, may install, operate, or monitor an electronic, mechanical, or other device. (c) Any law enforcement officer may assist in the operation and monitoring of an interception of a wire or electronic communication as long as an investigative officer is present at all times. (d) The Alabama State Law Enforcement Agency shall perform audits on the electronic, mechanical, or other devices. (e) The secretary may approve the use of an electronic, mechanical, or other device that is being used by a federal agency, as long as the approval is made in writing and attached to the original affidavit. §20-2A-3. Orders authorizing, approving, or extending the interception of wire or electronic communications may be granted, subject to this chapter, when the intercept may provide or has provided evidence a person is committing, has committed, or is about to commit a felony drug offense included in Article 5, commencing with Section 13A-12-201, of Chapter 12, of Title 13A. §20-2A-4. (a)(1) An investigative officer may submit a written request to the secretary requesting the secretary apply for an intercept order. If the secretary approves the request, the secretary may submit a written request to the Attorney General requesting the Attorney General apply for an intercept order to a judge of competent jurisdiction. The written request shall be on a form approved by the Attorney General and shall include an affidavit. (2) The affidavit shall include all of the following: a. The identity of the investigating officer making the application. b. A statement of the facts and circumstances relied upon by the applicant to justify the belief that an order should be issued, including all of the following: 1. Details of the specific offense that has been committed, is being committed, or will be committed. 2. A particular description of the nature and location of the communications facilities from which, or the place where, the communication is to be intercepted. 3. A particular description of the type of communication sought to be intercepted. 4. The identity of the person, if known, whose communications are to be intercepted. c. A statement that other investigative procedures have been tried and failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to be tried. d. A statement of the period of time the intercept is required to be maintained, including a statement of whether the intercept will automatically terminate when the described communication is first obtained. If the authorization for the intercept does not automatically terminate when the described type of communication is obtained, facts that establish probable cause to believe additional communications of the same type will occur. e. A statement of the facts concerning all previous applications known to the applicant, made to any judge for approval of an intercept involving the same person, facilities, or places specified in the application and the action taken by the judge, if known. f. If the application is for the extension of an order, a statement explaining the results obtained from the intercept or a reasonable explanation of the failure to obtain required results. (b) The Attorney General shall review the request and decide whether it is appropriate to submit an application to a judge of competent jurisdiction for an intercept order. (1) If the Attorney General decides to submit an application, he or she shall notify the secretary or the investigative officer. (2) If the Attorney General declines to submit an application, he or she shall send the secretary or the investigative officer a notice of declination within 10 days. §20-2A-5. (a) Upon receiving an application from the Attorney General for an intercept order, a judge of competent jurisdiction may enter an ex parte intercept order as requested or as modified, authorizing an intercept within the territorial jurisdiction of the court where the judge is sitting pursuant to subsection (g), if the judge determines all of the following: (1) There is probable cause to believe that an individual is committing, has committed, or is about to commit a felony drug offense included in Article 5, commencing with Section 13A-12-201, of Chapter 12, of Title 13A. (2) There is probable cause to believe that specific communications concerning that offense will be obtained through the intercept. (3) Normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to be tried. (4) There is probable cause to believe that the facilities from which, or the place where, the wire or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are being leased to, listed in the name of, or commonly used by the individual described in the application. (b) Each intercept order authorizing or approving the interception of a wire or electronic communication shall specify all of the following: (1) The identity of the individual, if known, whose communications are to be intercepted. (2) The nature and location of the communications facilities which, or the place where, authority to intercept is granted, and the means by which the intercept may be made. (3) A description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates. (4) The identity of the agency authorized to intercept the communications and the person requesting the application. (5) The period of time the intercept is authorized, including a statement of whether the intercept automatically terminates when the described communication is first obtained. (c) The intercept order authorizing the intercept, upon request of the applicant, shall direct that a communication common carrier, custodian, or other person furnish the applicant all information, facilities, and technical assistance necessary to accomplish the intercept unobtrusively and with a minimum of interference with the services that the carrier, custodian, or other person is providing the individual whose communications are to be intercepted. Any communication common carrier, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing facilities or assistance at the prevailing rates. (d)(1) An intercept order entered pursuant to this chapter may not authorize the interception of a wire or electronic communication for any period longer than is necessary to achieve the objective of the authorization, and in no event for more than 30 days. The 30-day period begins either when the investigative officer first begins to conduct an intercept under the intercept order, or 10 days after the order is entered, whichever is sooner. (2) The issuing judge may grant extensions of an intercept order, but only upon an application for an extension made in accordance with this chapter. The period of extension may not be for any period longer than the authorizing judge deems necessary to achieve the objective for which it is granted, and in no event may the extension be for more than 30 days. To be valid, each order and extension of an order shall provide that the authorization to intercept be executed as soon as practicable, be conducted in a way that minimizes the interception of communications not otherwise subject to interception under this chapter, and terminate upon obtaining the authorized objective or within 30 days, whichever occurs sooner. (e) Whenever an order authorizing an intercept is entered pursuant to this chapter, the order may require reports to the judge who issued the order showing what progress has been made toward achieving the authorized objective and the need for continued interception. Reports shall be made at any interval required by the judge. (f) A judge who issues an order authorizing the interception of a wire or electronic communication may not hear a criminal prosecution in which evidence derived from the interception may be used or in which the order may be an issue. (g) For jurisdictional purposes, the territorial jurisdiction pursuant to subsection (a) includes both the location of the device and the original listening post. A judge in either jurisdiction has the authority to issue an intercept order. §20-2A-6. (a) The contents of a wire or electronic communication intercepted by means authorized by this chapter shall be recorded on tape, wire, or other comparable device, to the extent practicable. The recording of the contents of a wire or electronic communication under this section shall be performed in a way that protects the recording from editing or other alterations. (b) Immediately following the expiration of an intercept order, or all extensions, if any, the recordings shall be made available to the judge issuing the order and shall be sealed. Custody of the recordings shall be wherever the judge orders. The recordings may not be destroyed until at least 10 years after the date of expiration of the order and the last extension, if any. A recording may be destroyed only by order of the judge who authorized the interception, or his or her successor. (c) Duplicate recordings may be made for use or disclosure pursuant to Section 20-2A-8 for investigative purposes. One copy shall remain in the custody of the judge and one copy shall be given to the entity that executed the intercept order. (d) The presence of a seal as required in subsection (b), or a satisfactory explanation of its absence, shall be a prerequisite for the use or disclosure of the contents of any wire or electronic communication or any evidence derived from the communication under Section 20-2A-8. (e) A violation of this section shall be punished as contempt of court. §20-2A-7. (a) The judge of competent jurisdiction shall seal each application made, and order granted, under this chapter. Custody of the applications and orders shall be wherever the judge orders. An application or order may be disclosed only upon a showing of good cause before a judge of competent jurisdiction. An application or order may not be destroyed until at least 10 years after the date it was sealed. An application or order may be destroyed only by order of the judge who authorized the interception, or his or her successor. (b) A violation of this section shall be punished as contempt of court. §20-2A-8. (a) Within a reasonable time, but not later than 90 days after the date an application for an order is denied or after the date an order, or the last extension, if any, expires, the judge who granted or denied the application shall serve an inventory on the individuals named in the order or the application or any other parties to the intercepted communications deemed appropriate by the issuing judge, if any. The inventory shall include a notice of all of the following: (1) The entry of the order or the application. (2) The date of the entry and the period of authorized interception or the date of denial of the application. (3) Whether wire or electronic communications were intercepted during the authorized period. (b) Upon a motion, the judge may make available for inspection to any individual or individuals whose communications have been intercepted, or their counsel, any portion of an intercepted communication, application, or order the judge determines is in the interest of justice to disclose to that person. (c) Upon an ex parte showing of good cause to the judge, the serving of the inventory required by this section may be postponed, but evidence derived from an order under this chapter may not be disclosed in any trial until after the inventory has been served. §20-2A-9. (a) The contents of an intercepted wire or electronic communication, or evidence derived from the communication, may not be entered in evidence or otherwise disclosed in a trial, hearing, or other proceeding in a federal or state court unless each party has been furnished a copy of the court order and application under which the intercept was authorized or approved, at least 10 days before the date of the trial, hearing, or other proceeding. The 10-day period may be waived by the judge if he or she finds it is not possible to furnish the party with the information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information. (b) An aggrieved individual charged with an offense in a trial, hearing, or proceeding in or before a court, department, officer, agency, regulatory body, or other authority of the United States or of this state or a political subdivision of this state, may move to suppress the contents of an intercepted wire or electronic communication or evidence derived from the communication on any of the following grounds: (1) The communication was unlawfully intercepted. (2) The order authorizing the interception is insufficient on its face. (3) The interception was not made in conformity with the order. (c) The motion to suppress shall be made before the trial, hearing, or proceeding, unless there was no opportunity to make the motion before the trial, hearing, or proceeding, or the person was not aware of the grounds of the motion before the trial, hearing, or proceeding. The hearing on the motion shall be held in camera upon the written request of the aggrieved person. If the motion is granted, the contents of the intercepted wire or electronic communication, and evidence derived from the communication, shall be treated as inadmissible evidence. The judge, on the filing of the motion by the aggrieved person, shall make available for inspection to the aggrieved person, or his or her counsel, any portion of the intercepted communication, or evidence derived from the communication, that the judge determines is in the interest of justice to make available. §20-2A-10. (a) Any law enforcement officer who obtains, by any means authorized by this chapter, knowledge of the contents of a wire or electronic communication, or evidence derived from the communication, may disclose the contents, or evidence derived, to another law enforcement officer if the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure. (b) Any law enforcement officer who obtains, by any means authorized by this chapter, knowledge of the contents of a wire or electronic communication, or evidence derived from the communication, may use the contents, or evidence derived, if the use is appropriate to the proper performance of the official duties of the officer. (c) Any individual who receives, by any means authorized by this chapter, information concerning a wire or electronic communication, or evidence derived from the communication, may disclose the contents of the communication, or evidence derived from the communication, while giving testimony in any proceeding held under the authority of the United States, this state, or a political subdivision of this state. (d) No privileged wire or electronic communication intercepted in accordance with, or in violation of, this chapter shall lose its privileged character. (e) When an investigative officer, while engaged in intercepting wire or electronic communications in a manner authorized by this chapter, intercepts communications relating to an offense other than those specified in the intercept order, the contents of, and evidence derived from the communication, may be disclosed or used as provided by subsection (a) and (b). The contents of, and any evidence derived from the communication may be used under subsection (c) when a judge of competent jurisdiction finds, on a subsequent application, that the contents were otherwise intercepted in accordance with this chapter. The subsequent application shall be made as soon as practicable. §20-2A-11. (a) On or before January 31 of each year, any judge who has issued an order, or an extension of an order, pursuant to Section 20-2A-5 that expired during the preceding year, or who has denied approval of an intercept order during the preceding year, shall report to the Administrative Office of the United States Courts all of the following: (1) The fact that an order or extension was sought. (2) The kind of order or extension sought. (3) The fact that the order or extension was granted as applied for, was modified, or was denied. (4) The period of intercepts authorized by the order and the number and duration of any extensions of the order. (5) The offense specified in the order, application, or extension. (6) The identity of the officer making the request and the individual authorizing the application. (7) The nature of the facilities or the place where communications were to be intercepted. (b) On or before March 31 of each year, the Attorney General shall report to the Administrative Office of the United States Courts the following information for the preceding calendar year: (1) The information required by subsection (a) with respect to each application for an order or extension made. (2) A general description of the intercepts made under each order or extension, including the approximate nature and frequency of incriminating communications intercepted, the approximate nature and frequency of other communications intercepted, the approximate number of individuals whose communications were intercepted, and the approximate nature, amount, and cost of the manpower and other resources used in the interceptions. (3) The number of arrests resulting from interceptions made under each order or extension and the offenses for which arrests were made. (4) The number of trials resulting from intercepts. (5) The number of motions to suppress made with respect to intercepts and the number granted or denied. (6) The number of convictions resulting from intercepts, the offenses for which the convictions were obtained, and a general assessment of the importance of the intercepts. (7) The information required by subdivisions (2) through (6) with respect to orders or extensions obtained. (c) Any judge required to file a report with the Administrative Office of the United States Courts and the Attorney General shall forward a copy of the report to the secretary by March 15 of each year. (d) On or before April 15 of each year, the secretary shall submit to the Alabama Administrative Office of Courts a report of all intercepts conducted pursuant to this chapter and terminated during the preceding calendar year. Such report shall include all of the following: (1) All reports received by judges and the report received by the Attorney General, as required by this section. (2) The number of agency personnel and other designated law enforcement authorized to possess, install, or operate electronic, mechanical, or other devices. (3) The number of agency personnel and other designated law enforcement officers who participated or engaged in the seizure of intercepts pursuant to this chapter during the preceding calendar year. (4) The total cost to the agency of all activities and procedures relating to the seizure of intercepts during the preceding calendar year, including costs of equipment, manpower, and expenses incurred as compensation for use of facilities or technical assistance provided by the agency. §20-2A-12. (a) An individual whose wire or electronic communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any individual who intercepts, discloses, or uses or procures another individual to intercept, disclose, or use the communication, and is entitled to recover from the individual or entity which engaged in the violation any of the following: (1) Actual damages. (2) Punitive damages. (3) Reasonable attorney's fees and other litigation costs reasonably incurred. (b) This section does not apply to any of the following individuals if acting in a reasonable manner pursuant to this chapter: (1) An operator of a switchboard, or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire communication, who intercepts a communication, or who discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication. (2) An officer, employee, or agent of a communication common carrier who employs or uses any equipment or device that may be attached to any telephonic equipment of any subscriber which permits the interception and recording of any telephonic communications solely for the purposes of business service improvements. (3) An officer, employee, or agent of a communication common carrier who provides information, facilities, or technical assistance to an investigative officer who is authorized as provided by this chapter to intercept a wire or electronic communication. (4) An individual acting under authority of law who intercepts a wire or electronic communication if the individual is a party to the communication, or if one of the parties to the communication has given prior consent to the interception. (5) An individual not acting under authority of law who intercepts a wire or electronic communication if the individual is a party to the communication, or if one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this state or for the purpose of committing any other injurious act. (c) A good faith reliance on a court order is a complete defense to any civil cause of action brought under this chapter. §20-2A-13. Any individual who knowingly and intentionally possesses, installs, operates, or monitors an electronic, mechanical, or other device in violation of this chapter shall be guilty of a Class C felony. §20-2A-14. This chapter does not apply to an individual who is a subscriber to a telephone operated by a communication common carrier and who intercepts a communication on a telephone to which he or she subscribes. This chapter does not apply to individuals who are members of the household of the subscriber who intercepts communications on a telephone in the home of the subscriber. §20-2A-15. The secretary may issue an administrative subpoena to a communication common carrier or a provider of communication services to compel production of business records if the records requested satisfy both of the following: (1) Are local or long-distance toll records or subscriber information. (2) Are material to an active investigation of a felony violation of the Alabama Uniform Controlled Substance Act, as provided in Chapter 2, being conducted by a special agent of the agency.

Section 3

Section 15-5-40, Code of Alabama 1975, is amended to read as follows:

§15-5-40.

(a) The definitions, prohibitions, authorizations, and procedures regarding access to stored wire and electronic communications and transactional records and the installation or use of pen registers or trap and trace devices shall be adopted and coextensive with the provisions of the federal law defined at Chapters 121 and 206 of Title 18, United States Code, Sections 2701-2712 and 3121-3127, and as those provisions may hereafter be amended.

(b) Emergency pen registers and trap and trace devices may be installed pursuant to the provisions of the federal law defined in Title 18, United States Code, Section 3125, as it may hereafter be amended, provided the investigative or law enforcement officer declaring the emergency has been specially authorized and designated in writing by the Attorney General, district attorney, or city attorney, if authorized to prosecute felony offenses, with prosecuting jurisdiction over the offense, investigation, defendant, or provider of wire or electronic communications service whose assistance is required.

(c) An emergency declared or order issued under the combined authority of the provisions of federal law defined at Chapters 121 and 206 of Title 18, United States Code, Sections 2701-2712 and 3121-3127, may authorize disclosure of call-identifying addressing, routing, or signaling information that may disclose the physical location of the subscriber, customer, or user of a wire or electronic communications service.

(d) An emergency may be declared in those situations involving the disappearance of an individual, the report of a runaway child, or report of a missing person for which no criminal charge may be readily apparent but where the individual may be in danger based on, but not limited to, the age, physical condition, or circumstances surrounding the disappearance of the individual. The situation will authorize the installation of pen registers and trap and trace devices and disclosure of call-identifying addressing, routing, or signaling information that may disclose the physical location of the subscriber, customer, or user of a wire or electronic communications service.

(e)(1) Orders or search warrants, or both, issued pursuant to this section are expressly allowed to be prospective in nature and these orders or search warrants, or both, are allowed to be executed during the day and night. Further, an

(2) An inventory of the information obtained pursuant to an order or search warrant issued pursuant to this section related to electronic storage media or the seizure or copying of electronically stored information may be limited to describing the physical storage media that was seized or copied.

(3) Within 10 days after the expiration of the order or search warrant issued pursuant to this section, law enforcement must return the order or search warrant to the judge designated in the order or search warrant, and, if unavailable, to another judge with jurisdiction.

(4) The judge shall seal each order issued pursuant to this section. The contents of a motion, affidavit, or order may not be disclosed except in the course of a judicial proceeding. Any unauthorized disclosure of a sealed order, motion, or affidavit, with knowledge that the information has been sealed, shall be punishable as contempt of court."

Section 4

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 5

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.