HOUSE BILL No. 4931

 

August 28, 2013, Introduced by Rep. Heise and referred to the Committee on Criminal Justice.

 

     A bill to authorize certain interceptions of communications

 

and the use of interception devices for certain offenses; to

 

provide for and regulate the application, issuance, and execution

 

of interception orders; to prescribe the powers and duties of

 

certain agencies, officers, and employees; to regulate the use and

 

disclosure of communications and evidence intercepted or obtained

 

under this act; to provide remedies and exemptions from liability;

 

and to prescribe penalties.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"criminal communications intercept act".

 

     Sec. 1a. As used in this act:

 

     (a) "Aggrieved person" means a person who was a party to an


 

intercepted wire, oral, or electronic communication or a person

 

against whom the interception was directed.

 

     (b) "Aural transfer" means a transfer containing the human

 

voice at any point between the point of origin and the point of

 

reception, including those points.

 

     (c) "Communication common carrier" means a person engaged as a

 

common carrier for hire in communication by wire or radio or in

 

radio transmission of energy. A person engaged in radio

 

broadcasting is not a communication common carrier while so

 

engaged.

 

     (d) "Computer trespasser" means a person who accesses a

 

computer without authorization and thus has no reasonable

 

expectation of privacy in any communication transmitted to,

 

through, or from the computer.

 

     (e) "Contents" means any information concerning the substance,

 

purport, or meaning of a wire, oral, or electronic communication.

 

     (f) "Electronic communication" means a transfer of signs,

 

signals, writing, images, sounds, data, or intelligence of any

 

nature transmitted in whole or in part by a wire, radio,

 

electromagnetic, photoelectronic, or photooptical system.

 

Electronic communication does not include any of the following:

 

     (i) A wire or oral communication.

 

     (ii) A communication made through a tone-only paging device.

 

     (iii) A communication from an electronic or mechanical device

 

that permits the tracking of an individual's or object's movement.

 

     (iv) Electronic transfer information stored by a financial

 

institution in a communication system used for electronic storage


 

and transfer of funds.

 

     (v) Stored electronic or stored wire communication governed by

 

18 USC 2703.

 

     (g) "Electronic communication service" means a service that

 

provides to the service's users the ability to send or receive wire

 

or electronic communications.

 

     (h) "Electronic communications system" means wire, radio,

 

electromagnetic, photooptical, or photoelectronic facilities for

 

transmitting wire or electronic communications and computer

 

facilities or related electronic equipment for the electronic

 

storage of wire or electronic communications.

 

     (i) "Electronic storage" means either of the following:

 

     (i) Temporary, intermediate storage of a wire or electronic

 

communication incidental to its electronic transmission.

 

     (ii) Storage of a wire or electronic communication by an

 

electronic communication service for backup protection of the

 

communication.

 

     (j) "Interception device" means a device, computer software,

 

or apparatus that can be used to intercept a wire, oral, or

 

electronic communication. Interception device does not include any

 

of the following:

 

     (i) A telephone or telegraph instrument, equipment, or facility

 

or any component of that instrument, equipment, or facility that is

 

1 or more of the following:

 

     (A) Furnished to the user by an electronic communication

 

service provider in the ordinary course of its business and being

 

used in the ordinary course of the user's business.


 

     (B) Furnished by the user for connection to the facilities of

 

an electronic communication service provider and being used in the

 

ordinary course of the user's business.

 

     (C) Being used by an electronic communication service provider

 

in the ordinary course of its business.

 

     (D) Being used by an investigative or law enforcement officer

 

in the ordinary course of the officer's duties.

 

     (ii) A hearing aid or similar device used to correct subnormal

 

hearing to not better than normal.

 

     (k) "Intercept" or "interception" means the aural or other

 

acquisition of the contents of a wire, oral, or electronic

 

communication through the use of an interception device.

 

     (l) "Investigative or law enforcement officer" means an officer

 

of this state or a political subdivision who is empowered by law to

 

conduct investigations of or to make arrests for offenses described

 

in section 7 and who is certified under section 11.

 

     Sec. 2. As used in this act:

 

     (a) "Judge of competent jurisdiction" means a judge appointed

 

under section 2a.

 

     (b) "Oral communication" means a communication uttered by a

 

person with a reasonable expectation that the communication is not

 

subject to interception. Oral communication does not include an

 

electronic communication.

 

     (c) "Pen register" means a device that records or decodes

 

electronic or other impulses which identify the numbers dialed or

 

otherwise transmitted on the telephone line to which the device is

 

attached, but does not include any device used by a provider or


 

customer of a wire or electronic communication service for billing,

 

or recording as an incident to billing, for communications services

 

provided by that provider or any device used by a provider or

 

customer of a wire communication service for cost accounting or

 

other substantially similar purposes in the ordinary course of its

 

business.

 

     (d) "Person" means an employee or agent of this state or a

 

political subdivision or an individual, partnership, association,

 

limited liability company, corporation, or other legal entity.

 

     (e) "Political subdivision" means a county, city, township, or

 

village of this state.

 

     (f) "Prosecutor" means the attorney general of this state or 1

 

assistant attorney general he or she designates or the principal

 

prosecuting attorney of the county in which the facility or place

 

where the communication to be intercepted is located or 1 assistant

 

prosecuting attorney of that county he or she designates.

 

     (g) "Readily accessible to the general public" means the

 

communication is not any of the following:

 

     (i) Scrambled or encrypted.

 

     (ii) Transmitted using modulation techniques whose essential

 

parameters have been withheld from the public to preserve the

 

communication's privacy.

 

     (iii) Carried on a subcarrier or other signal subsidiary to a

 

radio transmission.

 

     (iv) Transmitted over a communication system provided by a

 

communication common carrier, unless the communication is a tone-

 

only paging system communication.


 

     (v) Transmitted on a frequency allocated under 47 CFR part 25

 

or subpart D, E, or F of 47 CFR part 74 unless, in the case of a

 

communication transmitted on a frequency allocated under 47 CFR

 

part 74 that is not exclusively allocated to broadcast auxiliary

 

services, the communication is a 2-way voice communication by

 

radio.

 

     (h) "Trap and trace device" means a device 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.

 

     (i) "User" means a person who subscribes to or uses an

 

electronic communication service and is authorized to engage in

 

that use.

 

     (j) "Wire communication" means an aural transfer made in whole

 

or in part through the use of facilities for transmitting

 

communications by wire, cable, or other substantially similar

 

connection between the point of origin and the point of reception

 

that are furnished or operated by a person engaged in providing or

 

operating those facilities for the transmission of communications

 

and includes the use of such a connection in a switching station.

 

Wire communication does not include storage of that communication,

 

electronic or otherwise. Wire communication does not include

 

electronic communication.

 

     Sec. 2a. The supreme court shall appoint not less than 5

 

circuit court judges in each of the judicial districts designated

 

for the election of judges of the court of appeals as judges of

 

competent jurisdiction under this act.


 

     Sec. 3. (1) Except as otherwise provided in this act or as

 

authorized or approved under 18 USC 2510 to 2522, a person shall

 

not intentionally do any of the following:

 

     (a) Intercept, attempt to intercept, or solicit another person

 

to intercept or attempt to intercept a wire, oral, or electronic

 

communication.

 

     (b) Disclose or attempt to disclose to another person the

 

contents of a wire, oral, or electronic communication knowing or

 

having reason to know that the information was obtained through the

 

interception of a wire, oral, or electronic communication in

 

violation of this act.

 

     (c) Use or attempt to use the contents of a wire, oral, or

 

electronic communication knowing or having reason to know the

 

information was obtained through the interception of a wire, oral,

 

or electronic communication in violation of this act.

 

     (2) Except as provided in subsection (3), a person who

 

violates subsection (1) is guilty of a felony punishable by

 

imprisonment for not more than 4 years or a fine of not more than

 

$5,000.00, or both.

 

     (3) If both of the following apply, conduct prohibited by

 

subsection (1) is not punishable under subsection (2) unless it is

 

for direct or indirect commercial advantage or private financial

 

gain:

 

     (a) The conduct consists of or relates to the interception of

 

a satellite transmission that is not encrypted or scrambled.

 

     (b) Either of the following applies:

 

     (i) The satellite transmission is transmitted to a broadcasting


 

station for retransmission to the general public.

 

     (ii) The satellite transmission is transmitted as an audio

 

subcarrier intended for redistribution to facilities open to the

 

public but is not a data transmission or telephone call.

 

     (4) A person who trespasses on property owned or under the

 

control of another person with the intent to intercept or

 

facilitate intercepting a wire, oral, or electronic communication

 

is guilty of a misdemeanor punishable by imprisonment for not more

 

than 90 days or a fine of not more than $100.00, or both.

 

     (5) This act does not prohibit any of the following:

 

     (a) Interception, disclosure, or use of a wire or electronic

 

communication by a switchboard operator or an officer, employee, or

 

agent of an electronic communication service provider in the normal

 

course of his or her duties or employment while engaged in an

 

activity necessarily incident to rendering service or protecting

 

the provider's rights or property, unless the interception results

 

from the provider's use of service observing or random monitoring

 

for purposes other than mechanical or service quality control

 

checks, or the interception is in adherence to federal or state

 

laws pertaining to the monitoring and reporting of illegal

 

terrorist activity under federal law.

 

     (b) Interception of a wire or electronic communication, or an

 

oral communication transmitted by radio, or disclosure or use of

 

the information obtained through the interception by an officer,

 

employee, or agent of the federal communications commission in the

 

normal course of his or her employment and the commission's

 

monitoring responsibilities to enforce the communications act of


 

1934, 47 USC 151 to 621.

 

     (c) A person intercepting a wire, oral, or electronic

 

communication while acting under color of law if the person is a

 

party to the communication or 1 of the parties to the communication

 

gives prior consent to the interception.

 

     (d) A person intercepting a wire, oral, or electronic

 

communication while not acting under color of law if the person is

 

a party to the communication or 1 of the parties to the

 

communication gives prior consent to the interception, unless the

 

communication is intercepted to commit a criminal or tortious act

 

in violation of the constitution or laws of the United States or

 

this state.

 

     (e) Electronic surveillance as defined in 50 USC 1801,

 

conducted by an officer, employee, or agent of the United States in

 

the normal course of his or her official duty to conduct that

 

surveillance.

 

     (f) Intercepting or accessing an electronic communication made

 

through an electronic communication system that is configured so

 

the electronic communication is readily accessible to the general

 

public.

 

     (g) Intercepting a radio communication transmitted by any of

 

the following:

 

     (i) A station if the communication is for the general public's

 

use or relates to a ship, aircraft, vehicle, or person in distress.

 

     (ii) A governmental, law enforcement, civil defense, private

 

land mobile, fire, or public safety communications system that is

 

readily accessible to the general public.


 

     (iii) A station operating on an authorized frequency within the

 

bands allocated to amateurs, citizens band, or general mobile radio

 

services.

 

     (iv) A marine or aeronautical communications system.

 

     (h) Engaging in conduct that is prohibited under 48 USC 553 or

 

605.

 

     (i) Intercepting a wire or electronic communication whose

 

transmission is causing harmful interference to a lawfully

 

operating station or consumer electronic equipment to the extent

 

necessary to identify the source of the interference.

 

     (j) Interception by other users of the same frequency of a

 

radio communication made through a system that utilizes frequencies

 

monitored by individuals engaged in providing or using the system

 

if the communication is not scrambled or encrypted.

 

     (k) Using a pen register.

 

     (l) Using a trap and trace device.

 

     (m) An electronic communication service provider recording the

 

fact that a wire or electronic communication was initiated or

 

completed to protect the provider, another provider furnishing

 

service in connection with the wire or electronic communication, or

 

a user from fraudulent, unlawful, or abusive use of the service.

 

     (n) It is not unlawful under this act for a person acting

 

under the color of law to intercept the wire or electronic

 

communications of a computer trespasser if all of the following

 

circumstances exist:

 

     (i) The owner or operator of the computer authorizes the

 

interception of the computer trespasser's communications on the


 

computer.

 

     (ii) The person acting under color of law is lawfully engaged

 

in an investigation.

 

     (iii) The person acting under color of law has reasonable

 

grounds to believe that the content of the computer trespasser's

 

communications will be relevant to the investigation.

 

     (iv) The interception does not acquire communications other

 

than those transmitted to or from the computer trespasser.

 

     (6) A person may provide information, facilities, or technical

 

assistance to a person authorized by law to intercept a wire, oral,

 

or electronic communication if that person was provided with a

 

court order described in section 8 directing that assistance. The

 

person assisting shall not disclose the existence of any

 

interception, surveillance, or interception device relating to the

 

order described in this subsection except as otherwise required by

 

lawful process and then only after notifying the prosecutor who

 

obtained the order before disclosure.

 

     (7) Except as otherwise provided in subsections (8) and (9), a

 

person providing an electronic communication service to the public

 

shall not intentionally disclose the contents of a communication

 

while it is being transmitted on that service to a person other

 

than the addressee or intended recipient of the communication or an

 

agent of the addressee or intended recipient.

 

     (8) Subsection (7) does not apply if the service provider or

 

the provider's agent is the addressee or intended recipient of the

 

communication.

 

     (9) A service provider described in subsection (7) may


 

disclose the contents of a communication as follows:

 

     (a) If the communication was intercepted as described in

 

subsection (5).

 

     (b) As authorized under this act.

 

     (c) With the lawful consent of the originator, an addressee,

 

or an intended recipient of the communication.

 

     (d) To a person employed or authorized, or whose facilities

 

are used, to forward the communication to its destination.

 

     (e) To a law enforcement agency, if the service provider

 

obtains the contents inadvertently and believes they pertain to the

 

commission of a crime.

 

     Sec. 4. (1) Except as provided in subsection (2) or (3) or as

 

authorized or approved under 18 USC 2510 to 2522, a person shall

 

not do any of the following:

 

     (a) Manufacture, assemble, possess, or sell or otherwise

 

deliver an interception device knowing or having reason to know the

 

device's design renders it primarily useful for surreptitiously

 

intercepting wire, oral, or electronic communications.

 

     (b) Advertise or offer to sell or otherwise deliver an

 

interception device knowing or having reason to know the device's

 

design renders it primarily useful for surreptitiously intercepting

 

wire, oral, or electronic communications.

 

     (c) Advertise or offer to sell or otherwise deliver any device

 

by promoting the use of the device to surreptitiously intercept

 

wire, oral, or electronic communications.

 

     (2) In the normal course of its business, an electronic

 

communication service provider or an officer, agent, or employee of


 

or a person under contract with that service provider may

 

manufacture, assemble, possess, or sell an interception device

 

knowing or having reason to know the device's design renders it

 

primarily useful for surreptitiously intercepting wire, oral, or

 

electronic communications.

 

     (3) Under a warrant or order issued by a court of competent

 

jurisdiction or a comparable court of the United States, an

 

officer, agent, or employee of the United States, this state, or a

 

political subdivision may manufacture, assemble, possess, or sell

 

an interception device knowing or having reason to know the

 

device's design renders it primarily useful for surreptitiously

 

intercepting wire, oral, or electronic communications.

 

     (4) A person who violates subsection (1) is guilty of a felony

 

punishable by imprisonment for not more than 4 years or a fine of

 

not more than $5,000.00, or both.

 

     Sec. 5. If a wire, oral, or electronic communication is

 

intercepted, its contents and any evidence derived from the

 

communication shall not be received in evidence in a trial,

 

hearing, or other proceeding before a court, grand jury, tribunal,

 

department or regulatory agency, legislative committee, or other

 

authority of this state or a political subdivision if disclosure of

 

the communication or evidence would violate this act unless

 

otherwise authorized by federal law or the law of this state.

 

     Sec. 6. (1) An investigative or law enforcement officer who

 

knows the contents of a wire, oral, or electronic communication or

 

evidence derived from the communication may do any of the following

 

if he or she obtained that knowledge by a means authorized under


 

this act:

 

     (a) Disclose the contents or evidence to another investigative

 

or law enforcement officer or to an officer, agent, or official of

 

a law enforcement agency of the United States government to the

 

extent appropriate for proper performance of the official duties of

 

the person making or receiving the disclosure.

 

     (b) Use those contents or the evidence to the extent

 

appropriate for proper performance of his or her official duties.

 

     (2) A person who receives information concerning a wire, oral,

 

or electronic communication intercepted in accordance with this act

 

or evidence derived from the communication may disclose the

 

contents or evidence while giving testimony under oath or

 

affirmation in a proceeding held under the authority of the United

 

States, this state, or a political subdivision or in a civil

 

proceeding under section 13 if the person received the information

 

by a means authorized under this act.

 

     (3) A privileged wire, oral, or electronic communication

 

intercepted in accordance with or in violation of this act does not

 

lose its privileged character by that interception.

 

     (4) Except as otherwise provided in this subsection, if an

 

investigative or law enforcement officer intercepting wire, oral,

 

or electronic communications in the manner authorized by this act

 

intercepts a wire, oral, or electronic communication relating to an

 

offense other than an offense specified in the order under section

 

7, the communication's contents and evidence derived from the

 

communication may be disclosed or used as provided in subsection

 

(1) or (2). The communication's contents and any evidence derived


 

from the communication may be used under subsection (3) if

 

authorized or approved by a judge of competent jurisdiction on

 

subsequent application after determining that the contents were

 

otherwise intercepted in accordance with this act. The subsequent

 

application shall be made as soon as practicable after intercepting

 

the communication. This subsection does not authorize the

 

disclosure or use in any manner of the contents of or evidence

 

derived from a wire, oral, or electronic communication relating to

 

an offense punishable by imprisonment for 4 years or less or

 

punishable only by a fine.

 

     (5) A person who violates this section is guilty of a felony

 

punishable by imprisonment for not more than 4 years or a fine of

 

not more than $5,000.00, or both.

 

     Sec. 7. (1) A prosecutor may authorize an application to a

 

judge of competent jurisdiction for an order authorizing or

 

approving the interception of wire, oral, or electronic

 

communications by the investigative or law enforcement officer

 

responsible for the investigation of the offense for which the

 

application is made if the interception may provide or has provided

 

evidence of any of the following offenses:

 

     (a) Gang-related activity in violation of section 411u or 411v

 

of the Michigan penal code, 1931 PA 328, MCL 750.411u and 750.411v.

 

     (b) Human trafficking in violation of chapter LXVIIA of the

 

Michigan penal code, 1931 PA 328, MCL 750.462a to 750.462j.

 

     (c) Attempting or conspiring to commit an offense described in

 

subdivision (a) or (b).

 

     (2) The principal prosecuting attorney for a county or his or


 

her designated assistant prosecuting attorney shall not authorize

 

an application for a violation unless the attorney general or his

 

or her designated assistant attorney general approves the

 

authorization. The attorney general or his or her designated

 

assistant attorney general shall approve or deny the authorization

 

within 7 days after the request for authorization is made.

 

     (3) Unless the investigative or law enforcement officer

 

described in subsection (1) is employed by the department of state

 

police, the prosecutor authorizing the application shall notify the

 

director of the department of state police, or a person the

 

director designates, of the application and the information

 

described in section 8(1)(b)(ii) and (iv). If the proposed

 

interception will overlap, conflict with, hamper, or interfere with

 

another interception proposed or authorized, the director or his or

 

her designee shall advise the judge of competent jurisdiction for

 

each application and shall coordinate any subsequent interceptions.

 

     Sec. 8. (1) An application for an order authorizing or

 

approving the interception of a wire, oral, or electronic

 

communication shall be in writing upon oath or affirmation to a

 

judge of competent jurisdiction and shall state the applicant's

 

authority to apply. An application shall include all of the

 

following information:

 

     (a) The identity of the investigative or law enforcement

 

officer applying and the prosecutor authorizing the application.

 

     (b) A comprehensive statement of the facts and circumstances

 

the applicant relies upon to justify his or her belief that an

 

order should be issued, including all of the following:


 

     (i) Details of the particular offense that has been, is being,

 

or is about to be committed.

 

     (ii) Except as provided in section 9, a particular description

 

of the nature and location of the facilities from which, or the

 

place where, the communication is to be intercepted.

 

     (iii) A particular description of the type of communication

 

sought to be intercepted.

 

     (iv) If known, the identity of any person committing or about

 

to commit the offense and whose communication is to be intercepted.

 

     (v) A statement of the facts indicating the specific instances

 

of conduct demonstrating probable cause to believe the particular

 

offense has been, is being, or is about to be committed.

 

     (c) Comprehensive statements of each of the following:

 

     (i) Whether other investigative procedures have been tried and

 

have failed or reasonably appear to be unlikely to succeed if tried

 

or to be dangerous.

 

     (ii) The time period for which the interception must be

 

maintained. If the investigation's nature is such that the

 

authorization for interception should not automatically terminate

 

when the described type of communication has been obtained, the

 

statement shall include a particular description of the facts

 

establishing probable cause to believe additional communications of

 

the same type will occur after that time.

 

     (iii) The legitimate investigative objective to be expected by

 

the interception.

 

     (iv) The facts concerning all previous applications known to

 

the individuals authorizing and making the application that were


 

made for authorization to intercept or for approval of an

 

interception of a wire, oral, or electronic communication involving

 

any of the same persons, facilities, or places specified in the

 

application and the action taken by the judge on each previous

 

application.

 

     (d) If the application is for extension of an order, a

 

statement setting forth the results obtained from the interception

 

or a reasonable explanation of the failure to obtain any results.

 

     (e) Unless the applying investigative or law enforcement

 

officer is employed by the department of state police, a statement

 

that the director of the department of state police or an

 

individual the director designates has been notified of the

 

application and the information described in subdivision (b)(ii) and

 

(iv).

 

     (f) A statement of the estimated cost of the manpower and

 

other resources used in the interception for the period of time the

 

interception is authorized.

 

     (2) The judge of competent jurisdiction may require the

 

applicant to furnish additional testimony or documentary evidence

 

to support the application.

 

     (3) Based upon an application under subsection (1), the judge

 

of competent jurisdiction may enter an ex parte order, as requested

 

or as modified, authorizing or approving interception of a wire,

 

oral, or electronic communication if the judge determines all of

 

the following on the basis of the facts submitted by the applicant:

 

     (a) Probable cause exists to believe an individual is

 

committing, has committed, or is about to commit a particular


 

offense described in section 7.

 

     (b) Except as provided in section 9, probable cause exists to

 

believe the facilities from which, or the place where, the wire,

 

oral, or electronic communication is to be intercepted are being

 

used, or are about to be used, in connection with the offense or

 

are leased to, listed in the name of, or commonly used by a person

 

described in subsection (1)(b)(iv).

 

     (c) Probable cause exists to believe particular communications

 

concerning that offense will be obtained through the interception.

 

     (d) Usual investigative procedures have been tried and have

 

failed or reasonably appear to be unlikely to succeed if tried or

 

to be dangerous.

 

     (4) Each order authorizing or approving interception of a

 

wire, oral, or electronic communication shall specify all of the

 

following:

 

     (a) If known, the identity of the person whose communication

 

is to be intercepted.

 

     (b) The nature and location of the communication facilities as

 

to which, or the place where, authority to intercept is granted.

 

     (c) A particular description of the type of communication

 

sought to be intercepted and a statement of the particular offense

 

to which it relates.

 

     (d) The legitimate investigative objective for which

 

authorization to intercept is granted.

 

     (e) The agency authorized to intercept the communication and

 

the person authorizing the application.

 

     (f) The time period during which interception is authorized or


 

approved, including a statement as to whether interception shall

 

automatically terminate when the described communication has been

 

obtained.

 

     (5) If the application states that specific information,

 

facilities, or technical assistance is needed from a particular

 

person to accomplish the interception unobtrusively and with

 

minimum interference with the services that person is according a

 

person whose communications are to be intercepted, the order

 

authorizing the interception shall direct the particular person to

 

immediately furnish the information, facilities, or technical

 

assistance specified in the order to the applicant. The order shall

 

specify the time period during which the person is required to

 

provide information, facilities, or technical assistance. The

 

agency conducting the interception shall compensate the person

 

furnishing facilities or technical assistance for reasonable

 

expenses incurred in providing the facilities or assistance. A

 

person is not civilly liable for providing information, facilities,

 

or assistance under this subsection.

 

     (6) An order entered under this section shall not authorize or

 

approve the interception of a wire, oral, or electronic

 

communication for longer than the time necessary to achieve the

 

authorized investigative objective or 30 days, whichever is

 

earlier. The period begins on the day an investigative or law

 

enforcement officer first begins to conduct an interception under

 

the order or 10 days after the order is entered, whichever is

 

earlier. The judge may grant extensions of an order only upon

 

application for an extension and in accordance with subsections (1)


 

and (3). The extension period shall not be longer than the time the

 

judge determines is necessary to achieve the purposes for which the

 

order was granted or 30 days, whichever is earlier. Only 2

 

extensions of an order may be granted. After the second extension

 

of an order terminates, an investigative or law enforcement officer

 

may apply for and be granted an order authorizing the interception

 

of a wire, oral, or electronic communication based on the

 

information contained in the application for the terminated order

 

only if the new application includes new evidence, in addition to

 

that described in the previous application, justifying the

 

officer's belief that an order should be issued.

 

     (7) Each order and extension shall provide that the

 

authorization to intercept be executed as soon as practicable, be

 

conducted so as to minimize the interception of communications not

 

otherwise subject to interception under this act, and terminate

 

when the authorized objective is obtained or, in any event, after

 

not more than 30 days.

 

     (8) An order authorizing interception under this act shall

 

require reports to the judge who issued the order showing the

 

progress made toward achieving the authorized objective and any

 

need for continued interception. The reports shall be made weekly

 

or at shorter intervals as the judge requires.

 

     (9) The contents of a wire, oral, or electronic communication

 

intercepted as authorized by this act shall be recorded on tape or

 

by a comparable recording device. Recording under this subsection

 

shall be done in a way that protects the recording from editing or

 

other alterations. When an order or extension expires, all


 

recordings shall immediately be made available to the judge issuing

 

the order and sealed under his or her directions. Custody of the

 

recordings shall be where the judge orders. The recordings shall

 

not be destroyed except upon order of the judge or his or her

 

successor, but, except as otherwise provided in this subsection,

 

shall be retained for at least 10 years. However, if evidence is

 

not obtained from the interception within 1 year, a party

 

intercepted may move for destruction of the recordings. Duplicate

 

recordings may be made for use or disclosure of contents or

 

evidence under section 6(1) for investigations. The presence of the

 

seal or a satisfactory explanation for its absence is a

 

prerequisite for use or disclosure of contents or evidence under

 

section 6(2).

 

     (10) The judge shall seal applications made and orders granted

 

under this act. Custody of the applications and orders shall be

 

where the judge directs. The applications and orders shall be

 

disclosed only upon a showing of good cause before a judge of

 

competent jurisdiction. The applications and orders shall not be

 

destroyed except on order of the judge or his or her successor, but

 

shall be retained for at least 10 years.

 

     (11) Within a reasonable time, but not later than 90 days

 

after an order or extension terminates, the judge shall cause an

 

inventory to be served on the persons named in the order and on

 

other parties to intercepted communications as the judge determines

 

is in the interest of justice. Upon showing good cause, a judge may

 

delay the service of the inventory required under this subsection

 

for 1 or more periods. Each period shall not be greater than 30


 

days. The inventory shall include notice of all of the following:

 

     (a) Entry of the order.

 

     (b) The date the order was entered and the period of

 

authorized or approved interception.

 

     (c) The fact that during the period wire, oral, or electronic

 

communications were or were not intercepted.

 

     (12) If a person given an inventory under subsection (11)

 

files a motion and serves a copy of the motion on the law

 

enforcement agency described in subsection (11) and other parties

 

as required by law, the judge shall make available to the person or

 

his or her attorney for inspection the portions of the intercepted

 

communications to which the person was a party and the portions of

 

the applications and orders pertaining to communications to which

 

the person was a party.

 

     (13) The contents of a wire, oral, or electronic communication

 

intercepted under this act or evidence derived from the

 

communication shall not be received in evidence or otherwise

 

disclosed in a trial, hearing, preliminary examination, or other

 

proceeding in a court unless each party has been furnished with a

 

copy of the application and order authorizing or approving the

 

interception before the preliminary examination or not less than 21

 

days before the trial, hearing, or other proceeding. In the

 

interest of justice, the judge may adjourn the trial, hearing, or

 

other proceeding to allow the defendant at least 21 days to review

 

that evidence.

 

     (14) An aggrieved person in a trial, hearing, preliminary

 

examination, or other proceeding before a court, grand jury,


 

tribunal, department or regulatory agency, legislative committee,

 

or other authority of this state or a political subdivision may

 

move to suppress the contents of a wire, oral, or electronic

 

communication intercepted under this act or evidence derived from

 

the communication on 1 or more of the following grounds:

 

     (a) The communication was unlawfully intercepted.

 

     (b) The order of authorization or approval under which the

 

communication was intercepted is insufficient on its face.

 

     (c) The interception was not in conformity with the order of

 

authorization or approval.

 

     (15) A motion to suppress under subsection (14) shall be made

 

before the trial, hearing, preliminary examination, or other

 

proceeding unless there is no opportunity to make the motion before

 

the trial, hearing, preliminary examination, or other proceeding or

 

the aggrieved person making the motion is not aware of the grounds

 

of the motion before the trial, hearing, preliminary examination,

 

or other proceeding. If the aggrieved person files a motion, the

 

judge may make available to the aggrieved person or his or her

 

attorney for inspection any portion of the intercepted

 

communication or evidence derived from the intercepted

 

communication that the judge determines is in the interests of

 

justice. If the judge grants the motion to suppress under

 

subsection (14), the intercepted wire, oral, or electronic

 

communication or evidence derived from the communication shall be

 

treated as having been obtained in violation of this act.

 

     (16) The prosecutor may appeal an order granting a motion to

 

suppress under subsection (14) or the denial of an application for


 

an order of approval if the prosecutor certifies to the judge or

 

other official granting the motion or denying the application that

 

the appeal is not taken for delay. The prosecutor shall take the

 

appeal within 30 days after the order granting the motion to

 

suppress is entered or the application is denied and shall

 

prosecute it diligently.

 

     (17) A violation of subsection (9) or (10) may be punished as

 

contempt of the court that approved or denied the application for

 

interception.

 

     (18) An order authorizing interception under this act shall

 

also authorize the entry of the premises covered under the order

 

for the sole purpose of installing, maintaining, or removing an

 

interception device. The judge who issued the order shall be

 

notified within 48 hours of the time and method of each entry

 

allowed by this subsection.

 

     Sec. 9. (1) The requirements of section 8(1)(b)(ii) and (3)(b)

 

relating to the specification of the facilities from which, or the

 

place where, the communication is to be intercepted do not apply if

 

any of the following circumstances exist:

 

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

 

interception of an oral communication, all of the following

 

circumstances exist:

 

     (i) The application is by a state or local law enforcement

 

officer and is approved by the attorney general, designated

 

assistant attorney general, or principal prosecuting attorney or

 

designated assistant prosecuting attorney.

 

     (ii) The application contains a full and complete statement as


 

to why the specification is not practical and identifies the person

 

committing the offense and whose communications are to be

 

intercepted.

 

     (iii) The judge finds that the specification is not practical.

 

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

 

electronic communication, all of the following circumstances exist:

 

     (i) The application is by a state or local law enforcement

 

officer and is approved by the attorney general, designated

 

assistant attorney general, or principal prosecuting attorney or

 

designated assistant prosecuting attorney.

 

     (ii) The application identifies the person believed to be

 

committing the offense and whose communications are to be

 

intercepted and the applicant makes a showing that there is

 

probable cause to believe that the person's actions could have the

 

effect of thwarting interception from a specified facility.

 

     (iii) The judge finds that the showing has been adequately made.

 

     (iv) The order authorizing or approving the interception is

 

limited to interception only for the time that is reasonable to

 

presume that the person identified in the application is or was

 

reasonably proximate to the instrument through which the

 

communication will be or was transmitted.

 

     (2) An interception of a communication under an order with

 

respect to which the requirements of section 8(1)(b)(ii) and (3)(b)

 

do not apply under subsection (1)(a) shall not begin until the

 

place where the communication is to be intercepted is ascertained

 

by the person implementing the interception order. A provider of

 

wire or electronic communications service that has received an


 

order as provided for in subsection (1)(b) may move the court to

 

modify or quash the order on the ground that its assistance with

 

respect to the interception cannot be performed in a timely or

 

reasonable fashion. The court, upon notice to the government, shall

 

decide the motion expeditiously.

 

     Sec. 10. (1) Within 30 days after an order or extension

 

entered under section 8 expires or the judge denies an order

 

authorizing or approving interception of a wire, oral, or

 

electronic communication, the judge shall report all of the

 

following information to the administrative office of the United

 

States courts and to the department of state police:

 

     (a) The fact that an order or extension was applied for.

 

     (b) The kind of order or extension applied for.

 

     (c) Whether the order or extension was granted as applied for,

 

modified, or denied.

 

     (d) The interception time period authorized and the number and

 

duration of any extensions of the order.

 

     (e) Any offense specified in the application, order or

 

extension.

 

     (f) The identity of the investigative or law enforcement

 

officer and agency applying and the prosecutor authorizing the

 

application.

 

     (g) The nature of the facilities from which, or the place

 

where, communications were to be intercepted.

 

     (2) In January of each year, the attorney general shall report

 

to the administrative office of the United States courts all of the

 

following:


 

     (a) The information required by subsection (1) with respect to

 

each application for an order or extension authorizing or approving

 

an interception of a wire, oral, or electronic communication made

 

during the preceding calendar year.

 

     (b) A general description of the interceptions made under each

 

order or extension described in subdivision (a), including all of

 

the following:

 

     (i) The approximate nature and frequency of incriminating

 

communications intercepted.

 

     (ii) The approximate nature and frequency of other

 

communications intercepted.

 

     (iii) The approximate number of persons whose communications

 

were intercepted.

 

     (iv) The approximate nature, amount, and cost of the manpower

 

and other resources used in the interceptions.

 

     (c) The number of arrests resulting from the interceptions

 

described in subdivision (b) and the offenses for which arrests

 

were made.

 

     (d) The number of trials resulting from the interceptions

 

described in subdivision (b).

 

     (e) The number of motions to suppress made with respect to the

 

interceptions described in subdivision (b) and the number granted

 

or denied.

 

     (f) The number of convictions resulting from the interceptions

 

described in subdivision (b), the offenses for which the

 

convictions were obtained, and a general assessment of the

 

importance of the interceptions.


 

     (g) The information required by subdivisions (b) to (f) with

 

respect to orders or extensions for interception of wire, oral, or

 

electronic communications obtained in a preceding calendar year.

 

     (3) On or before January 10 of each year, the department of

 

state police shall report to the attorney general, senate, house of

 

representatives, and governor all of the information regarding

 

applications, orders, and interceptions of wire, oral, or

 

electronic communications required under subsection (2).

 

     Sec. 11. The attorney general and the director of the

 

department of state police shall establish a course of training in

 

the legal and technical aspects of intercepting wire, oral, or

 

electronic communications, regulations he or she finds necessary or

 

appropriate for the training program, and minimum standards for the

 

certification and periodic recertification of investigative or law

 

enforcement officers eligible to intercept wire, oral, or

 

electronic communications under this act. The director of the

 

department of state police shall charge each officer who enrolls in

 

this training program a reasonable enrollment fee to offset the

 

costs of training.

 

     Sec. 12. An officer, employee, or agent of an electronic

 

communication service provider who learns of the existence of an

 

interception device in the course of his or her employment or

 

otherwise shall report the device's existence to the department of

 

state police. The department of state police shall determine

 

whether placement of the device is authorized by court order. If

 

placement of the device is not authorized by court order, the

 

department of state police shall immediately inform the person


 

whose wire, oral, or electronic communication was intercepted or

 

intended to be intercepted of the device's existence. This section

 

does not diminish or excuse any obligation of the department of

 

state police, the officer, employee, or agent of the electronic

 

communication service provider, or any other person to remove the

 

device or to take any other actions required by law, regulation, or

 

policy.

 

     Sec. 13. (1) Except as provided in section 8(5), a person

 

whose wire, oral, or electronic communication is intercepted,

 

disclosed, or used in violation of this act has a civil cause of

 

action against any person who intercepts, discloses, uses, or

 

procures another person to intercept, disclose, or use the

 

communication or its contents. In the civil cause of action, the

 

person is entitled to recover all of the following:

 

     (a) Actual damages, but not less than $1,000.00 a day for each

 

day of a violation.

 

     (b) Exemplary damages.

 

     (c) Reasonable attorney fees and other litigation costs

 

reasonably incurred.

 

     (2) A good-faith reliance on a court order or a legislative

 

authorization is a defense to a civil or criminal action brought

 

under this act or any other law.

 

     Sec. 14. Purchases of an interception device shall be recorded

 

as a separate line item on any state or local appropriation bill.

 

     Sec. 15. This act does not prohibit any of the following:

 

     (a) An interception otherwise permitted by law for a peace

 

officer of this state or of the federal government, or the


 

officer's agent, while in the performance of the officer's duties.

 

     (b) Hearing a communication transmitted by common carrier

 

facilities by an employee of a communications common carrier when

 

acting in the course of his or her employment.

 

     (c) The recording by a public utility of telephone

 

communications to it requesting service or registering a complaint

 

by a customer, if a record of the communications is required for

 

legitimate business purposes and the agents, servants, and

 

employees of the public utility are aware of the practice by an

 

employee safeguarding property owned by, or in custody of, his or

 

her employer on his or her employer's property.

 

     (d) The routine monitoring, including recording, by employees

 

of the department of corrections of telephone communications on

 

telephones available for use by prisoners in state correctional

 

facilities, if the monitoring is conducted in the manner prescribed

 

by section 70 of the corrections code of 1953, 1953 PA 232, MCL

 

791.270, and rules promulgated under that section.

 

     Sec. 16. Any court of criminal jurisdiction may enter an order

 

authorizing the use of a pen register or a trap and trace device as

 

provided in 18 USC 3121.

 

     Sec. 17. The director of the department of state police or a

 

person designated by the director shall maintain custody of all

 

interception devices to be used by state law enforcement officers

 

during the periods in which those devices are not being used for

 

interception purposes under a court order. The sheriff for a county

 

or a person designated by the sheriff shall maintain custody of all

 

interception devices to be used by local law enforcement officers


 

in that county during periods in which those devices are not being

 

used for interception purposes under a court order. The director of

 

state police and the sheriff for a county or their designees shall

 

maintain a custody log of interception devices that are in their

 

custody under this section. The log shall keep a record of the

 

following information:

 

     (a) Each person who has been granted access to the

 

interception device.

 

     (b) The inclusive dates of access.

 

     (c) The purpose of the access.

 

     (d) If access is pursuant to a court order, the name of the

 

judge who issued the order.