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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Criminal Code
Chapter : EAVESDROPPING AND COMMUNICATIONS
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13-3001 Definitions
In this chapter, unless the context otherwise requires:
1. "Aural transfer" means a communication containing the human voice at any point
between and including the point of origin and the point of reception.
2. "Child monitoring device" means a device that is capable of transmitting an
audio or audiovisual signal and that is installed or used in a residence for child
supervision or safety monitoring by any parent, guardian or other responsible person in
the person's own residence.
3. "Communication service provider" means any person who is engaged in providing a
service that allows its users to send or receive oral, wire or electronic communications
or computer services.
4. "Electronic communication" means any transfer of signs, signals, writing,
images, sounds, data or intelligence of any nature that is transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic or photooptical system but that
does not include any of the following:
(a) Any wire or oral communication.
(b) Any communication made through a tone-only paging device.
(c) Any communication from a tracking device.
5. "Electronic communication system" means any communication or computer facilities
or related electronic equipment for the transmission, processing or electronic storage of
electronic communications.
6. "Electronic storage" means either of the following:
(a) Any temporary, intermediate storage of a wire or electronic communication
incidental to the electronic transmission.
(b) Any storage of the communication by an electronic communication service
provider for purposes of backup protection of the communication.
7. "Intercept" means the aural or other acquisition of the contents of any wire,
electronic or oral communication through the use of any electronic, mechanical or other
device.
8. "Oral communication" means a spoken communication that is uttered by a person
who exhibits an expectation that the communication is not subject to interception under
circumstances justifying the expectation but does not include any electronic
communication.
9. "Pen register" means a device or process that records or decodes electronic or
other impulses that identify the numbers dialed or otherwise transmitted on the telephone
line or communication facility to which the device is attached or the dialing, routing,
addressing or signaling information that is transmitted by an instrument or facility from
which a wire or electronic communication is transmitted but does not include the contents
of any communication, except when used in connection with a court order issued pursuant
to section 13-3010 or 13-3012. A pen register does not include a publicly available
device or process that is otherwise not unlawful.
10. "Person" means any individual, enterprise, public or private corporation,
unincorporated association, partnership, firm, society, governmental authority or entity,
including the subscriber to the communication service involved, and any law enforcement
officer.
11. "Readily accessible to the general public" means a radio communication that is
not:
(a) Scrambled or encrypted.
(b) Transmitted using modulation techniques with essential parameters that have
been withheld from the public to preserve the privacy of the communication.
(c) Carried on a subcarrier or other signal subsidiary to a radio transmission.
(d) Transmitted over a communication system provided by a common carrier, unless
the communication is a tone-only paging system communication.
(e) Transmitted on frequencies allocated under part 25, subpart D, E or F or part
74 or part 94 of the rules of the federal communications commission. If a communication
transmitted on a frequency allocated under part 74 is not exclusively allocated to
broadcast auxiliary services, the communication is a two-way voice communication system
by radio.
12. "Remote computing service" means providing to the public any computer storage or
processing services by means of an electronic communication system.
13. "Trap and trace device" means a device or process that captures the incoming
electronic or other impulses that identify the originating number of an instrument or
device from which a wire or electronic communication was transmitted or the dialing,
routing, addressing and signaling information that is reasonably likely to identify the
source of a wire or electronic communication but does not include the content of any
communication, except when used in connection with a court order issued pursuant to
section 13-3010 or 13-3012. A trap and trace device does not include a publicly available
device or process that is otherwise not unlawful.
14. "Wire communication" means any aural transfer that is made in whole or in part
through the use of facilities for the transmission of communications by the aid of any
wire, cable or other like connection between the point of origin and the point of
reception, including the use of a connection in a switching station, and that is
furnished or operated by any person who is engaged in providing or operating the
facilities for the transmission of communications.
13-3002 False or forged messages; classification
A. It is unlawful for a person:
1. Knowingly to send to any person by telegraph or telephone a false or forged
message, purporting to be from a telegraph or telephone office, or from any other person.
2. Knowingly to deliver or cause to be delivered to any person a false or forged
message, falsely purporting to have been received by telegraph or telephone.
3. To furnish or conspire to furnish, or cause to be furnished to an agent,
operator or employee, to be sent by telegraph or telephone, or to be delivered, a
message, knowing it is false or forged, with intent to deceive, injure or defraud
another.
B. A person who violates any provision of this section is guilty of a class 6
felony.
13-3003 Opening, reading or publishing sealed letter of another without authority; classification
A person who knowingly opens or reads or causes to be read a sealed letter not
addressed to himself, without being authorized so to do either by the writer of such
letter, or by the person to whom it is addressed, or a person who, without like
authority, publishes the contents of such letter, knowing it to have been unlawfully
opened, is guilty of a class 2 misdemeanor.
13-3004 Sending threatening or anonymous letter; classification
A person who knowingly sends or delivers to another a letter or writing, whether
subscribed or not, threatening to accuse him or another of a crime, or to expose or
publish his failings or infirmities, and a writer or sender of an anonymous letter or
writing calculated to create distrust of another or tending to impute dishonesty, want of
chastity, drunkenness or any crime or infirmity to the receiver of the letter or to any
other person, is guilty of a class 2 misdemeanor.
13-3005 Interception of wire, electronic and oral communications; installation of pen register or trap and trace device; classification; exceptions
A. Except as provided in this section and section 13-3012, a person is guilty of a
class 5 felony who either:
1. Intentionally intercepts a wire or electronic communication to which he is not a
party, or aids, authorizes, employs, procures or permits another to so do, without the
consent of either a sender or receiver thereof.
2. Intentionally intercepts a conversation or discussion at which he is not
present, or aids, authorizes, employs, procures or permits another to so do, without the
consent of a party to such conversation or discussion.
3. Intentionally intercepts the deliberations of a jury or aids, authorizes,
employs, procures or permits another to so do.
B. Except as provided in sections 13-3012 and 13-3017, a person who intentionally
and without lawful authority installs or uses a pen register or trap and trace device on
the telephone lines or communications facilities of another person which are utilized for
wire or electronic communication is guilty of a class 6 felony.
13-3006 Divulging communication service information; classification; exception
A person is guilty of a class 6 felony who either:
1. Intentionally and without lawful authority obtains any knowledge of the contents
of a wire or electronic communication by connivance with a communication service provider
or its officer or employee.
2. Is a communications service provider, officer or employee of a communications
service provider and intentionally divulges to anyone but the person for whom it was
intended, except with the permission of the sender or the person for whom it was intended
or in any case covered by the exemption in section 13-3012, the contents or the nature of
a wire or electronic communication entrusted to the communications service provider for
transmission or delivery.
13-3008 Possession of interception devices; classification
A. It is unlawful for a person to have in his possession or control any device,
contrivance, machine or apparatus designed or primarily useful for the interception of
wire, electronic or oral communications as defined in section 13-3001 with the intent to
unlawfully use or employ or allow the device, contrivance, machine or apparatus to be
used or employed for the interception, or having reason to know the device, contrivance,
machine or apparatus is intended to be so used.
B. All property possessed or controlled by any person in violation of this section
is subject to seizure and forfeiture pursuant to chapter 39 of this title.
C. A person who violates this section is guilty of a class 6 felony.
13-3009 Duty to report to law enforcement officers; classification
It shall be the duty of every communications service provider and its officers and
employees to report any violation of sections 13-3005, 13-3006 and 13-3008 coming within
their knowledge to the county attorney having jurisdiction and to the attorney
general. Any intentional violation of this section is a class 3 misdemeanor.
13-3010 Ex parte order for interception; definition
A. On application of a county attorney, the attorney general or a prosecuting
attorney whom a county attorney or the attorney general designates in writing, any
justice of the supreme court, judge of the court of appeals or superior court judge may
issue an ex parte order for the interception of wire, electronic or oral communications
if there is probable cause to believe both:
1. A crime has been, is being or is about to be committed.
2. Evidence of that crime or the location of a fugitive from justice from that
crime may be obtained by the interception.
B. An application under subsection A shall be made in writing and upon the oath or
affirmation of the applicant. It shall include:
1. The name and title of the applicant.
2. A full and complete statement of the facts and circumstances relied upon by the
applicant, including the supporting oath or affirmation of the investigating peace
officer of this state or any political subdivision of this state to justify the officer's
belief that an order should be issued. The statement shall include:
(a) Details as to the particular crime that has been, is being or is about to be
committed.
(b) The identity of the person, if known, committing the offense and whose
communications are to be intercepted.
(c) A particular description of the type of communications sought to be
intercepted.
(d) A particular description of the nature, identification and location of the
communication facility from which or the place where the communication is to be
intercepted. If the identification or specific description of the communication facility
from which or the place where the communication is to be intercepted is not practical,
the affidavit in support of the application must state why:
(i) Specification is impractical.
(ii) Interception from any facility or at any place where the communication may
occur is necessary.
3. A full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous.
4. A statement of the period of time for which the interception is required to be
maintained. If the nature of the investigation is such that authorization to intercept
should not automatically terminate when the described type of communication has been
first obtained, the statement shall include a particular description of facts
establishing probable cause to believe that additional communications of the same type
will occur after the communication has been first obtained.
5. A full and complete statement of the facts concerning all previous applications
known to the individual authorizing and making the application, made to any judge for
authorization to intercept, or for approval of interceptions of communications involving
any of the same persons, facilities or places specified in the application, and the
action taken by the judge on each application.
6. If the application is for the extension of an order, a statement setting forth
the results thus far obtained from the interception, or a reasonable explanation of the
failure to obtain such results.
C. Upon proper application, a judge may enter an ex parte order authorizing
interception, as requested or with any appropriate modifications, if the judge determines
on the basis of the facts submitted by the applicant that:
1. There is probable cause to believe that a person is committing, has committed or
is about to commit a particular crime.
2. There is probable cause to believe that particular communications concerning
that offense will be obtained through the interception.
3. Normal investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too dangerous.
4. There is probable cause to believe any of the following:
(a) Wire or electronic communications concerning the offense are being made or are
about to be made by the person over the communication facilities for which interception
authority is granted.
(b) Oral communications concerning the offense are being made or are about to be
made by the person in the location for which interception authority is granted.
(c) Communications concerning the offense are being made or are about to be made by
the person in different and changing locations, or from different and changing
facilities.
D. Each order authorizing the interception of any wire, electronic or oral
communication shall specify all of the following:
1. The identity of the person, if known, whose communications are to be
intercepted.
2. The nature and location of the communication facilities as to which or the place
where authority to intercept is granted. If authority is granted to intercept
communications of a person wherever that person is located or from whatever communication
facility is used, the order shall so state and shall include any limitations imposed by
the authorizing judge as to location, time or manner of the interception. The order shall
state that the interception shall not begin until the facilities from which or the place
where the communication is to be intercepted is ascertained by the person implementing
the interception order.
3. A particular 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 of the
person authorizing the application.
5. The period of time during which the interception is authorized, including a
statement as to whether or not the interception shall automatically terminate when the
described communication has been first obtained.
6. That the authorization for interception be executed as soon as practicable, that
it be conducted in such a way as to minimize the interception of communications not
otherwise subject to interception under this section and that it terminate upon
attainment of the authorized objective or on the date specified, whichever comes first.
7. That entry may be made to service, install or remove interception devices or
equipment if entry is necessary to effect the interception.
E. An order that is entered under this section may not authorize the interception
of any wire or oral communication for any period that is longer than is necessary to
achieve the objective of the authorization and that exceeds thirty days. This thirty day
period begins on the earlier of the day on which the interception actually begins under
the order or ten days after the order is signed. The court may grant extensions of any
order if an application for an extension is made pursuant to subsection A and the court
makes the findings required by subsection C. The period of extension shall be no longer
than the authorizing judge deems necessary to achieve the purposes for which it was
granted and shall not exceed thirty days.
F. Any ex parte order for interception, together with the papers on which the
application was based, shall be delivered to and retained by the applicant during the
duration of the interception as authority for the interception authorized in the order.
The justice or judge issuing the order shall retain a true copy of the order at all
times.
G. Within ten days after the termination of the authorized interception,
applications made and orders granted under this section shall be returned to and sealed
by the judge. Custody of the applications and orders shall be wherever the judge directs.
The applications and orders shall be disclosed only on a showing of good cause before a
judge of competent jurisdiction or as otherwise provided.
H. If possible, the contents of any communication that is intercepted by any means
authorized by this section shall be recorded on any tape, electronic, wire or other
comparable device. The recording of the contents of any wire, electronic or oral
communication under this subsection shall be done in such a way as will protect the
recording from editing or alterations. Within ten days after the termination of the
authorized interception, the recordings shall be made available to the judge who issued
the order and shall be sealed under the judge's directions. Custody of the recordings
shall be maintained pursuant to court order. The recordings shall be kept for ten years
and shall not be destroyed except on an order of the issuing judge or another judge of
competent jurisdiction.
I. Within ninety days after an application under subsection A is denied, or the
period of an order or any extension expires, the issuing or denying judge shall serve the
persons named in the order or application and any other parties to the intercepted
communications as the judge may determine the interests of justice require with an
inventory, including notice of all of the following:
1. The fact of the entry of the order or the application.
2. The date of the entry and the period of authorized interception, or the denial
of the application.
3. The fact that during the period of authorized interception wire, electronic or
oral communications were or were not intercepted. On motion, the judge may make available
to the person or the person's attorney for inspection such portions of the intercepted
communications, applications and order as the judge determines to be in the interest of
justice. On an ex parte showing of good cause to the judge, the serving of the notice
required by this subsection may be postponed.
J. On request of the applicant, any order authorizing interception shall direct
that the communication service provider, landlords, custodians or other persons furnish
the applicant with all information, facilities and technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of interference with the
services that these persons are according the person whose communications are to be
intercepted.
K. The order may require written reports to be made to the issuing judge at
specified intervals showing the progress made toward achieving the authorized objective
and the need for continued interception.
L. Any order authorizing the interception of wire communications pursuant to this
chapter is also deemed to authorize the interception of any electronic communication that
may be made over the same equipment or by the same facility.
M. If the intercepted communication is in a code or foreign language and an expert
in that code or foreign language is not reasonably available during the interception
period, minimization may be accomplished as soon as practicable after the interception.
N. An interception under this chapter may be conducted in whole or in part by
government personnel or by an individual operating under a contract with the government
or acting under the supervision of a law enforcement officer who is authorized to conduct
the interception.
O. The applicant is responsible for providing to the administrative office of the
United States courts all reports on applications for or interceptions of wire, electronic
or oral communications that are required by federal statutes.
P. For the purposes of this section, "crime" means murder, gaming, kidnapping,
robbery, bribery, extortion, theft, an act in violation of chapter 23 of this title,
dealing in narcotic drugs, marijuana or dangerous drugs, sexual exploitation of children
in violation of chapter 35.1 of this title or any felony that is dangerous to life, limb
or property. Crime includes conspiracy to commit any of the offenses listed in this
subsection.
13-3011 Disclosing confidential information relating to ex parte order; exceptions; classification
A. Except in any trial, hearing or other judicial proceeding, a person shall not
knowingly disclose to another person any information concerning either:
1. The application for or the granting or denial of orders for the interception or
installation of a pen register or trap and trace device or a request for the preservation
of records or evidence pursuant to section 13-3016 or a subpoena issued pursuant to
section 13-3018.
2. The identity of the person or persons whose communications are the subject of an
ex parte order, subpoena or records preservation request granted pursuant to sections
13-3010, 13-3015, 13-3016, 13-3017 and 13-3018.
B. Subsection A of this section does not apply to the disclosure of information to
the communication service provider whose facilities are involved or to an employee or
other authorized agent of the county attorney, attorney general or law enforcement agency
that applies for an order permitting interception or installation of a pen register or
trap and trace device or who requests the preservation of records or evidence pursuant to
section 13-3016 or a subpoena issued pursuant to section 13-3018.
C. Notwithstanding subsection A of this section, a peace officer or prosecuting
attorney who obtains knowledge of the contents of a wire, electronic or oral
communication as authorized by sections 13-3010, 13-3015, 13-3016, 13-3017 and 13-3018 or
evidence derived from that knowledge may:
1. Disclose the contents of the communication to a peace officer or prosecuting
attorney to the extent the disclosure is appropriate to the proper performance of the
official duties of the peace officer or prosecuting attorney making or receiving the
disclosure.
2. Use the contents of the communication to the extent that the use is appropriate
to the proper performance of the official duties of the peace officer or prosecuting
attorney.
D. A person who violates this section is guilty of a class 1 misdemeanor.
13-3012 Exemptions
The following are exempt from the provisions of this chapter:
1. The interception of wire, electronic or oral communications, the installation
and operation of a pen register or trap and trace device, the providing of information,
facilities or technical assistance to an investigative or law enforcement officer
pursuant to a subpoena or an ex parte order granted pursuant to sections 13-3010,
13-3015, 13-3016, 13-3017 and 13-3018 or an emergency interception made in good faith
pursuant to section 13-3015, including any of the foregoing acts by a communication
service provider or its officers, agents or employees.
2. The normal use of services, equipment and facilities that are provided by a
communication service provider pursuant to tariffs that are on file with the ARIZONA
corporation commission or the federal communications commission and the normal functions
of any operator of a switchboard.
3. Any officer, agent or employee of a communication service provider who performs
acts that are otherwise prohibited by this article in providing, constructing,
maintaining, repairing, operating or using the provider's services, equipment or
facilities, protecting the provider's service, equipment and facilities from illegal use
in violation of tariffs that are on file with the ARIZONA corporation commission or the
federal communications commission and protecting the provider from the commission of
fraud against it.
4. Providing requested information or any other response to a subpoena or other
order that is issued by a court of competent jurisdiction or on demand of any other
lawful authority.
5. The interception of wire or electronic communications or the use of a pen
register or trap and trace device by a communication service provider or by a person
providing technical assistance at the request of the communication service provider if
the interception or use either:
(a) Relates to the operation, maintenance and testing of that service, the
protection of the rights or property of the provider or the protection of users of that
service from fraudulent, abusive or unlawful use of that service.
(b) Records the fact that a wire or electronic communication was initiated or
completed in order to protect the provider, another provider furnishing service toward
the completion of the communication or a user of that service from fraudulent, unlawful
or abusive use of that service.
6. The interception of any radio communication that is transmitted:
(a) By any station for the use of the general public or if the transmission relates
to ships, aircraft, vehicles or persons in distress.
(b) By any government, law enforcement, civil defense, private land mobile or
public safety communication system, including police and fire systems, and that is
readily accessible to the general public.
(c) By any station that operates on an authorized frequency within the bands that
are allocated to the amateur, citizens band or general mobile radio services.
(d) By any marine or aeronautical communications system.
(e) Through a system using frequencies that are monitored by persons who are
engaged in the provision or the use of the system or by other persons who use the same
frequency if the communication is not scrambled or encrypted.
7. The interception of wire or electronic communication if the transmission is
causing harmful interference to any lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source of the interference.
8. The use of a pen register or trap and trace device by a communication service
provider for billing or recording as an incident to billing for communication services,
or for cost accounting or other like purposes in the ordinary course of business.
9. The interception of any wire, electronic or oral communication by any person, if
the interception is effected with the consent of a party to the communication or a person
who is present during the communication, or the installation of a pen register or trap
and trace device with the consent of a user or subscriber to the service.
10. Divulging the contents of a wire or electronic communication and any related
records or information to a law enforcement agency by a remote computing service or
communication service provider, officer or employee if either:
(a) The contents, records or information were lawfully or inadvertently obtained by
the service provider and appear to pertain to the commission of a crime.
(b) The provider reasonably believes that an emergency involving immediate danger
of death or serious physical injury to any person justifies the disclosure of the
contents, records or information without delay.
11. Divulging records or other information that pertains to a customer or subscriber
by a remote computing service or communication service provider, other than the contents
of a communication, either:
(a) As authorized by section 13-3016.
(b) With the customer's or subscriber's consent.
(c) As may be necessary incident to the rendition of the service or for the
protection of the rights or property of the provider of that service.
(d) To any person other than a governmental agency.
12. The interception or access of an electronic communication that is made through
an electronic communication system and that is configured so that the electronic
communication is readily accessible to the general public.
13. For other users of the same frequency to intercept a radio communication that is
made through a system that uses frequencies that are monitored by individuals who provide
or use the system, if the communication is not scrambled or encrypted.
14. The interception of oral communications by means of a child monitoring device.
13-3013 Defenses
The following constitute a complete defense to any civil or criminal action brought
under this chapter or under any other law:
1. A good faith reliance on an ex parte order or subpoena that is issued pursuant
to section 13-3010, 13-3015, 13-3016, 13-3017 or 13-3018.
2. Providing information pursuant to section 13-3012.
3. Providing assistance, information or facilities for an emergency interception
pursuant to section 13-3015.
4. Disclosing stored electronic communications or preserving records, content or
evidence pursuant to section 13-3016.
5. Providing equipment, information or assistance to render stored electronic
communications in a usable form pursuant to section 13-3016.
13-3014 Communication service provider; right to compensation
Any communication service provider who furnishes information, facilities or
technical assistance pursuant to this chapter shall be compensated therefor by the
applicant at the prevailing rates.
13-3015 Emergency interception
A. Notwithstanding any other provision of this chapter, if the attorney general or
a county attorney or such prosecuting attorneys as they may designate in writing
reasonably determines that an emergency situation exists involving immediate danger of
death or serious physical injury to any person, and that such death or serious physical
injury may be averted by interception of wire, electronic or oral communications before
an order authorizing such interception can be obtained, the attorney general or a county
attorney or his designee may specially authorize a peace officer or law enforcement
agency to intercept such wire, electronic or oral communications.
B. The attorney general or county attorney or his designee specially authorizing an
emergency interception pursuant to subsection A of this section shall apply for an order
authorizing the interception, in accordance with the provisions of section 13-3010. The
application shall be made as soon as practicable, and in no event later than forty-eight
hours after commencement of the emergency interception. The application shall include an
explanation and summary of any interception of communications occurring before the
application for authorization.
C. If the prosecuting attorney fails to obtain an authorization within forty-eight
hours after commencement of the emergency interception, or if authorization to intercept
communications is denied, the interception shall immediately terminate and any
communications intercepted without judicial authorization may not be used as evidence in
any criminal or civil proceeding against any person. In either event, the prosecuting
attorney shall furnish to the court an inventory of any communications intercepted, for
service pursuant to the provisions of section 13-3010, subsection I. The provisions of
this subsection do not prohibit the use as evidence of any communications intercepted
without judicial authorization against the persons conducting or authorizing the
interceptions if such interceptions were not made in good faith reliance on this section.
13-3016 Stored oral, wire and electronic communications; agency access; backup preservation; delayed notice; records preservation request; violation; classification
A. This section applies to oral, wire and electronic communications that are
entrusted to a communication service provider or remote computing service solely for the
purpose of transmission, storage or processing. Oral, wire and electronic communications
that are in the possession of a person who is entitled to access the contents of such
communications for any purpose other than transmission, storage or processing are
ordinary business records that may be obtained by subpoena or court order.
B. An agency or political subdivision of this state may require the disclosure by a
communication service provider or remote computing service of the contents of an oral,
wire or electronic communication that has been in electronic storage for one hundred
eighty days or less in one of the following ways:
1. Without prior notice to the subscriber or party, by obtaining a search warrant
issued pursuant to chapter 38, article 8 of this title.
2. With prior notice to the subscriber or party, by serving a subpoena, except that
notice may be delayed pursuant to subsection D of this section.
3. With prior notice to the subscriber or party, by obtaining a court order on an
application and certification that contains specific and articulable facts showing that
there are reasonable grounds to believe that the communication content sought is relevant
to an ongoing criminal investigation, except that notice may be delayed pursuant to
subsection D of this section.
C. An agency or political subdivision of this state may require the disclosure by a
communication service provider or remote computing service of the contents of an oral,
wire or electronic communication that has been in electronic storage for more than one
hundred eighty days in one of the following ways:
1. Without notice to the subscriber or party, by obtaining a search warrant issued
pursuant to chapter 38, article 8 of this title.
2. With prior notice to the subscriber or party, by serving a subpoena, except that
notice may be delayed pursuant to subsection D of this section.
3. With prior notice to the subscriber or party, by obtaining a court order on an
application and certification that contains specific and articulable facts showing that
there are reasonable grounds to believe that the communication content sought is relevant
to an ongoing criminal investigation, except that notice may be delayed pursuant to
subsection D of this section.
D. Except as provided in subsection E of this section, the notice to the subscriber
or party that is required by this section may be delayed for a period of not to exceed
ninety days under any of the following circumstances:
1. If the applicant for a search warrant or court order pursuant to this section
requests a delay of notification and the court finds that delay is necessary to protect
the safety of any person or to prevent flight from prosecution, tampering with evidence,
intimidation of witnesses or jeopardizing an investigation.
2. If the investigator or prosecuting attorney proceeding by subpoena executes a
written certification that there is reason to believe that notice to the subscriber or
party may result in danger to the safety of any person, flight from prosecution,
tampering with evidence, intimidation of witnesses or jeopardizing an investigation. The
agency shall retain a true copy of the certification with the subpoena.
E. If further delay of notification is necessary, extensions of up to ninety days
each may be obtained by application to the court or certification pursuant to subsection
D of this section.
F. Any agency acting pursuant to this section may apply for a court order directing
the communication service provider or remote computing service not to notify any other
person of the existence of the subpoena, court order or warrant for such period as the
court deems appropriate. The court shall grant the application if it finds that there is
reason to believe that notice may cause an adverse result described in subsection D of
this section. A person who violates an order issued pursuant to this subsection is guilty
of a class 1 misdemeanor.
G. On the expiration of any period of delay under this section, the agency shall
deliver to the subscriber or party a copy of the process used and notice including:
1. That information was requested from the service provider.
2. The date on which the information was requested.
3. That notification to the subscriber or party was delayed.
4. The identity of the court or agency ordering or certifying the delay.
5. The provision of this section by which delay was obtained.
6. That any challenge to the subpoena or order must be filed within fourteen days.
H. On the request of an agency or political subdivision of this state, a
communication service provider or remote computing service shall take all necessary steps
to preserve records, communication content and other evidence in its possession pending
the issuance of a court order or other process. The communication service provider or
remote computing service shall retain the preserved records, communication content and
other evidence for ninety days. On the renewed request of an agency or political
subdivision, the preservation period may be extended for an additional ninety days.
Except as provided in section 13-3011, a person shall not notify the subscriber or party
during the period of the preservation request.
13-3017 Ex parte order for pen register or trap and trace device
A. Any prosecuting attorney or investigating peace officer of this state or its
political subdivisions may apply to any justice of the supreme court, judge of the court
of appeals, judge of the superior court or magistrate for an ex parte order authorizing
the installation and use of a pen register or a trap and trace device. The application
shall be made in writing and under oath and shall state:
1. The name and title of the applicant.
2. The attributes of the communication, including the number or other identifier,
the identity, if known, of the subscriber and, if known, the location of the telephone
line or other facility to which the pen register or trap and trace device is to be
attached or applied and, if the order authorizes the installation of a trap and trace
device, the geographic limits of the order.
3. A certification by the applicant that the information likely to be obtained is
relevant to an ongoing criminal investigation.
4. A statement of the offense to which the information likely to be obtained by the
pen register or trap and trace device relates.
B. On proper application pursuant to subsection A, the judge shall issue an ex
parte order authorizing the installation and use of a pen register or trap and trace
device or process if the judge finds that the applicant has certified that the
information likely to be obtained by the installation and use is relevant to an ongoing
criminal investigation. On service, the order applies to any person or entity that
provides wire or electronic communication service in this state or that does business in
this state and whose assistance may facilitate the execution of the order. If an order is
served on any person or entity that is not specifically named in the order and on request
of the person or entity, the prosecuting attorney or peace officer who serves the order
shall provide written or electronic certification that the order applies to the person or
entity being served. An order that is issued under this subsection shall specify all of
the following:
1. The identity, if known, of the subscriber of the communication service or
telephone line to which the pen register or trap and trace device is to be attached or
applied.
2. The attributes of the communication to which the order applies, including the
number or other identifier and, if known, the location of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied
and, if the order authorizes the installation of a trap and trace device, the geographic
limits of the order.
3. A statement of the offense to which the information likely to be obtained by the
pen register or trap and trace device relates.
4. That, on the request of the applicant, the communication service provider shall
furnish information, facilities and technical assistance necessary to accomplish the
installation of the pen register or trap and trace device and to identify subscribers of
any communication facility or telephone number obtained by operation of such device.
C. An order that is issued under this section authorizes the installation and use
of a pen register or trap and trace device for a period of not to exceed sixty
days. Extensions of the order may be granted, but only on an application and judicial
finding pursuant to subsections A and B. The period of each extension granted shall not
exceed sixty days.
13-3018 Communication service records; subpoenas; application; certification; definition
A. This section applies to all communication service providers that do business in
this state or that furnish communication services to persons within this state.
B. The prosecutor may issue a subpoena duces tecum to a communication service
provider in order to obtain communication service records in connection with a criminal
investigation or prosecution for any offense in which a prosecutor suspects that a
computer or network was used. This subsection does not prevent the prosecutor from
obtaining a grand jury subpoena duces tecum.
C. The prosecutor who issues a subpoena pursuant to this section shall certify in
the body of the subpoena that the information likely to be obtained is relevant to an
ongoing criminal investigation.
D. An authorized representative of a communication service provider may certify
communication service records that are obtained by subpoena if all of the following
apply:
1. The records are the regular communication service records that are used and kept
by the communication service provider.
2. The records are made at or near the time the underlying communications occur in
the ordinary course of business.
3. The authorized representative certifies that the record produced in response to
the subpoena is an accurate copy of the communication service provider records.
E. Certified communication service records that are obtained by subpoena may be
introduced in evidence at a hearing or trial and constitute prima facie evidence of the
facts contained in the records.
F. If a certification of communication service provider records is acknowledged by
any notary or other officer who is authorized by law to take acknowledgments, the
certification shall be received in evidence without further proof of its authenticity.
G. For the purposes of this section, "communication service records" includes
subscriber information, including name, billing or installation address, length of
service, payment method, telephone number, electronic account identification and
associated screen names, toll bills or access logs, records of the path of an electronic
communication between the point of origin and the point of delivery and the nature of the
communication service provided, such as caller identification, automatic number
identification, voice mail, electronic mail, paging or other service features.
Communication service records do not include the content of any stored oral, wire or
electronic communication.
13-3019 Surreptitious photographing, videotaping, filming or digitally recording; exemptions; violation; classification; definitions
A. It is unlawful for any person to knowingly photograph, videotape, film,
digitally record or by any other means use a device to secretly view or record another
person without that person's consent under both of the following circumstances:
1. In a restroom, bathroom, locker room, bedroom or other location where the person
has a reasonable expectation of privacy.
2. While the person is urinating, defecating, dressing, undressing, nude or
involved in sexual intercourse or sexual contact.
B. It is unlawful to disclose, display, distribute or publish a photograph,
videotape, film or digital recording made in violation of subsection A of this section
without the consent of the person depicted.
C. This section does not apply to:
1. Photographing, videotaping, filming or digitally recording for security purposes
where notice of the use of photographing, videotaping, filming or digital recording
equipment is clearly posted in the location.
2. Photographing, videotaping, filming or digitally recording by correctional
officials for security reasons or in connection with the investigation of alleged
misconduct of persons on the premises of a jail or prison.
3. Photographing, videotaping, filming or digitally recording by law enforcement
officers pursuant to an investigation, which is otherwise lawful.
4. The use of a child monitoring device as defined in section 13-3001.
D. A violation of subsection A or B of this section is a class 5 felony.
E. For the purposes of this section "sexual contact" and "sexual intercourse" have
the same meanings prescribed in section 13-1401.
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