H.F. 2222 Section 1. NEW SECTION . 808B.1 Title. 1 This chapter shall be known as the “Iowa Electronic 2 Communications Privacy Act” . 3 Sec. 2. NEW SECTION . 808B.2 Definitions. 4 As used in this chapter, unless the context otherwise 5 requires: 6 1. “Adverse result” means any of the following: 7 a. Danger to the life or physical safety of an individual. 8 b. Flight from prosecution. 9 c. Destruction of or tampering with evidence. 10 d. Intimidation of potential witnesses. 11 e. Serious jeopardy to an investigation or undue delay of a 12 trial. 13 2. “Authorized possessor” means the possessor of an 14 electronic device when that person is the owner of the 15 electronic device or has been authorized to possess the 16 electronic device by the owner of the device. 17 3. “Electronic communication” means the transfer of signs, 18 signals, writings, images, sounds, data, or intelligence of any 19 nature in whole or in part by a wire, radio, electromagnetic, 20 photoelectric, or photo-optical system. 21 4. “Electronic communication information” means any 22 information about an electronic communication or the use of an 23 electronic communication service, including but not limited to 24 the contents, sender, recipients, format, or location of the 25 sender or recipients at any point during the communication; the 26 time or date the communication was created, sent, or received; 27 or any information pertaining to any individual or device 28 participating in the communication, including but not limited 29 to an internet protocol address. “Electronic communication 30 information” does not include subscriber information as defined 31 in this chapter. 32 5. “Electronic communication service” means a service that 33 provides to its subscribers or users the ability to send or 34 receive electronic communications, including any service that 35 -1- LSB 5099YH (4) 86 rh/rj 1/ 10

H.F. 2222 acts as an intermediary in the transmission of electronic 1 communications, or stores electronic communication information. 2 6. “Electronic device” means a device that stores, 3 generates, or transmits information in electronic form. 4 7. “Electronic device information” means any information 5 stored on or generated through the operation of an electronic 6 device, including the current and prior locations of the 7 electronic device. 8 8. “Electronic information” means electronic communication 9 information or electronic device information. 10 9. “Government entity” means a department or agency of the 11 state or a political subdivision of the state, or an individual 12 acting for or on behalf of the state or a political subdivision 13 of the state. 14 10. “Service provider” means a person or entity offering an 15 electronic communication service. 16 11. “Specific consent” means consent provided directly 17 to the government entity seeking information, including but 18 not limited to when the government entity is the addressee 19 or intended recipient or a member of the intended audience 20 of an electronic communication. “Specific consent” does not 21 require that the originator of the communication have actual 22 knowledge that an addressee, intended recipient, or member of 23 the specific audience is a government entity. 24 12. “Subscriber information” means the name, address, 25 telephone number, electronic mail address, or similar contact 26 information provided by the subscriber to the service provider 27 to establish or maintain an account or communication channel, 28 a subscriber or account number or identifier, the length 29 of service, and the types of services used by a user of or 30 subscriber to a service provider. 31 Sec. 3. NEW SECTION . 808B.3 Unlawful acts —— exceptions. 32 1. a. Except as provided in subsections 2 and 3, a 33 government entity shall not do any of the following: 34 (1) Compel the production of or access to electronic 35 -2- LSB 5099YH (4) 86 rh/rj 2/ 10

H.F. 2222 communication information from a service provider. 1 (2) Compel the production of or access to electronic device 2 information from any person or entity other than the authorized 3 possessor of the device. 4 (3) Access electronic device information by means of 5 physical interaction or electronic communication with the 6 electronic device. 7 b. This subsection does not prohibit the intended recipient 8 of an electronic communication from voluntarily disclosing 9 electronic communication information concerning that electronic 10 communication to a government entity. 11 2. A government entity may compel the production of or 12 access to electronic communication information from a service 13 provider, or compel the production of or access to electronic 14 device information from any person or entity other than the 15 authorized possessor of the electronic device only under the 16 following conditions: 17 a. Pursuant to a warrant issued pursuant to chapter 808 and 18 subject to section 808B.4. 19 b. Pursuant to a court order authorizing the production of 20 or access to electronic communication information. 21 c. Pursuant to a subpoena, provided that the electronic 22 information is not sought for the purpose of investigating 23 or prosecuting a criminal offense and if not otherwise 24 prohibited by state or federal law. This paragraph shall not 25 be construed to expand any authority under state law to compel 26 the production of or access to electronic information. 27 3. A government entity may access electronic device 28 information by means of physical interaction or electronic 29 communication with the electronic device only under the 30 following conditions: 31 a. Pursuant to a warrant issued pursuant to chapter 808 and 32 subject to section 808B.4. 33 b. Pursuant to a court order authorizing such access to 34 electronic device information. 35 -3- LSB 5099YH (4) 86 rh/rj 3/ 10

H.F. 2222 c. With the specific consent of the authorized possessor of 1 the electronic device. 2 d. With the specific consent of the owner of the electronic 3 device, only when the electronic device has been reported as 4 lost or stolen. 5 e. If the government entity, in good faith, believes that 6 an emergency involving danger of death or serious physical 7 injury to any person requires access to the electronic device 8 information. 9 f. If the government entity, in good faith, believes the 10 electronic device to be lost, stolen, or abandoned and access 11 to the electronic device by the government entity is necessary 12 to identify, verify, or contact the authorized possessor of the 13 electronic device. 14 Sec. 4. NEW SECTION . 808B.4 Warrant requirements. 15 1. A warrant for electronic information shall meet all of 16 the following requirements: 17 a. Describe with particularity the electronic information 18 to be seized by specifying the time periods covered and, 19 as appropriate and reasonable, the target individuals or 20 accounts, the applications or services covered, and the types 21 of electronic information sought. 22 b. Require that any electronic information obtained through 23 the execution of the warrant that is unrelated to the objective 24 of the warrant be sealed and not be subject to further review, 25 use, or disclosure without a court order. A court shall issue 26 such an order upon a finding that there is probable cause 27 to believe that the electronic information is relevant to an 28 active investigation, or such review, use, or disclosure is 29 required by state or federal law. 30 c. Comply with all other provisions of state and federal 31 law, including any provisions prohibiting, limiting, or 32 imposing additional requirements on the use of search warrants. 33 If directed to a service provider, the warrant shall be 34 accompanied by an order requiring the service provider to 35 -4- LSB 5099YH (4) 86 rh/rj 4/ 10

H.F. 2222 verify the authenticity of electronic information that it 1 produces by affidavit. 2 2. When issuing any warrant or court order for electronic 3 information, or upon the petition from the subject or recipient 4 of the warrant or court order, a court may, in its discretion, 5 do any of the following: 6 a. Appoint a referee or special master charged with ensuring 7 that only electronic information necessary to achieve the 8 objective of the warrant or order is produced or accessed. 9 b. Require that any electronic information obtained 10 through the execution of the warrant or the court order that 11 is unrelated to the objective of the warrant be destroyed 12 as soon as practicable upon the termination of the current 13 investigation and any related investigations or proceedings. 14 Sec. 5. NEW SECTION . 808B.5 Electronic communication 15 information —— voluntary disclosure. 16 1. A service provider may voluntarily disclose electronic 17 communication information or subscriber information if not 18 otherwise prohibited by state or federal law. 19 2. If a government entity receives electronic communication 20 information voluntarily provided pursuant to subsection 1, the 21 government entity shall destroy that electronic communication 22 information within ninety days unless any of the following 23 apply: 24 a. The government entity has or obtains the specific consent 25 of the sender or recipient of the electronic communication 26 about which electronic communication information was disclosed. 27 b. The government entity obtains a court order authorizing 28 the retention of the electronic communication information. A 29 court shall issue a retention order upon a finding that the 30 conditions justifying the initial voluntary disclosure continue 31 to exist, in which case the court shall authorize the retention 32 of the electronic communication information only as long as 33 those conditions exist, or there is probable cause to believe 34 that the electronic communication information constitutes 35 -5- LSB 5099YH (4) 86 rh/rj 5/ 10

H.F. 2222 evidence that a crime has been committed. 1 c. The entity reasonably believes that the electronic 2 communication information relates to child pornography and 3 the electronic communication information is retained as part 4 of a multiagency database used in the investigation of child 5 pornography and related crimes. 6 Sec. 6. NEW SECTION . 808B.6 Electronic information —— 7 emergency. 8 1. If a government entity obtains electronic information 9 pursuant to an emergency involving the risk of death or 10 serious physical harm to a person that requires access to 11 the electronic information without delay, the government 12 entity shall, within three days after obtaining the electronic 13 information, do any of the following: 14 a. File an application with the court for a warrant or order 15 authorizing access to the electronic information. 16 b. File a motion with the court seeking approval of the 17 emergency disclosures setting forth the facts giving rise to 18 the emergency. 19 2. a. The court shall promptly rule on the application or 20 motion. 21 b. Upon a finding that the facts did not give rise to an 22 emergency or upon denying the warrant or order application 23 on any other ground, the court shall order the immediate 24 destruction of all electronic information obtained and shall 25 require the government entity to serve immediate notice 26 pursuant to section 808B.7, subsection 1, if such notice has 27 not already been given. 28 Sec. 7. NEW SECTION . 808B.7 Notice of electronic 29 information requests or provision in emergencies. 30 1. Except as otherwise provided in this section, any 31 government entity that executes a warrant or obtains electronic 32 information in an emergency pursuant to section 808B.6 shall 33 serve notice by certified or registered mail, electronic mail, 34 or any other means reasonably calculated to be effective, on 35 -6- LSB 5099YH (4) 86 rh/rj 6/ 10

H.F. 2222 the identified subject of the warrant or emergency request, 1 that informs the identified subject that electronic information 2 about the subject has been compelled or requested and states 3 with reasonable specificity the nature of the government 4 investigation under which the electronic information is sought. 5 The notice shall include a copy of the warrant or a written 6 statement setting forth facts giving rise to the emergency. 7 The notice shall be provided contemporaneously with the 8 execution of a warrant, or, in the case of an emergency, within 9 three days after obtaining the electronic information. 10 2. a. When a warrant is sought or electronic information is 11 obtained in an emergency under section 808B.6, the government 12 entity may submit a request supported by a sworn affidavit 13 for an order delaying notification and prohibiting any party 14 providing electronic information from notifying any other party 15 that electronic information has been sought. The court shall 16 issue the order if the court determines there is reason to 17 believe that notification may have an adverse result, but only 18 for the period of time that the court finds there is reason to 19 believe that the notification may have that adverse result, not 20 to exceed ninety days. 21 b. Upon the expiration of the period of delay of the 22 notification, the government entity shall serve a document that 23 includes the electronic information described in subsection 24 1, a copy of all electronic information obtained or a summary 25 of that electronic information, including, at a minimum, the 26 number and types of records disclosed, the date and time when 27 the earliest and latest records were created, and a statement 28 of the grounds for the court’s determination to grant a delay 29 in notifying the individual, by certified or registered mail, 30 electronic mail, or any other means reasonably calculated to 31 be effective, on the identified subject of the warrant or 32 emergency request. 33 Sec. 8. NEW SECTION . 808B.8 Subpoena authority. 34 This chapter shall not limit the authority of a government 35 -7- LSB 5099YH (4) 86 rh/rj 7/ 10

H.F. 2222 entity to use an administrative, grand jury, trial, or civil 1 discovery subpoena to do any of the following: 2 1. Require an originator, addressee, or intended recipient 3 of an electronic communication to disclose any electronic 4 communication information associated with that electronic 5 communication. 6 2. Require an entity that provides electronic communication 7 services to its officers, directors, employees, or agents 8 for the purpose of carrying out their duties, to disclose 9 electronic communication information associated with an 10 electronic communication to or from an officer, director, 11 employee, or agent of the entity. 12 3. Require a service provider to provide subscriber 13 information. 14 Sec. 9. NEW SECTION . 808B.9 Relief. 15 1. An aggrieved person in a trial, hearing, or proceeding in 16 or before any court, department, officer, agency, regulatory 17 body, or other authority of this state, may move to suppress 18 any electronic information obtained or retained in violation of 19 the fourth amendment to the Constitution of the United States 20 or Article I, section 8, of the Constitution of the State of 21 Iowa, or of this chapter. 22 2. The attorney general may commence a civil action to 23 compel any government entity to comply with the provisions of 24 this chapter. 25 Sec. 10. REPEAL. Chapter 808B, Code 2016, is repealed. 26 EXPLANATION 27 The inclusion of this explanation does not constitute agreement with 28 the explanation’s substance by the members of the general assembly. 29 This bill establishes the Iowa electronic communications 30 privacy Act and provides remedies. 31 ELECTRONIC INFORMATION ACCESS BY GOVERNMENT ENTITY. The 32 bill prohibits a government entity from compelling the 33 production of or access to electronic communication information 34 or electronic device information without a search warrant, a 35 -8- LSB 5099YH (4) 86 rh/rj 8/ 10

H.F. 2222 court order, or a subpoena issued under the requirements in 1 the bill. The bill also prohibits a government entity from 2 accessing electronic device information by means of physical 3 interaction or electronic communication with the electronic 4 device without a search warrant, a court order, or specific 5 consent of the owner or other authorized possessor of the 6 electronic device; but allows access if the government entity, 7 in good faith, believes that an emergency situation exists, or 8 that the electronic device is lost, stolen, or abandoned under 9 certain circumstances. The bill includes certain definitions 10 including “electronic communication”, “electronic communication 11 information”, “electronic communication service”, “electronic 12 device”, and “electronic device information”. 13 VOLUNTARY DISCLOSURE —— SERVICE PROVIDER. The bill provides 14 that a service provider may voluntarily disclose electronic 15 communication information or subscriber information to a 16 government entity if not otherwise prohibited by state or 17 federal law, and generally requires the government entity 18 to destroy such information within 90 days unless certain 19 circumstances exist. 20 EMERGENCY. The bill requires a government entity that 21 obtains electronic information pursuant to an emergency 22 involving the risk of death or serious physical harm to a 23 person to file an application with the court for a warrant 24 or order authorizing access to the electronic information 25 or to file a motion with the court seeking approval of the 26 emergency disclosures setting forth the facts giving rise 27 to the emergency. If a court denies the warrant or order 28 authorizing access to the electronic information, the court is 29 required to order the immediate destruction of all electronic 30 information obtained and shall require the government entity to 31 serve immediate notice under the bill. 32 NOTICE. The bill requires a government entity that executes 33 a warrant or obtains electronic information in an emergency 34 situation under the bill to serve notice on the identified 35 -9- LSB 5099YH (4) 86 rh/rj 9/ 10

H.F. 2222 subject of the warrant or emergency request that informs the 1 subject that information about the subject has been compelled 2 or requested and that states with reasonable specificity 3 the nature of the government investigation under which the 4 information is sought. The bill provides certain circumstances 5 under which notification of the identified subject of the 6 warrant or emergency request may be delayed. 7 SUBPOENAS. The bill does not limit the authority of a 8 government entity to use an administrative, grand jury, trial, 9 or civil discovery subpoena under certain circumstances. 10 RELIEF. The bill provides that an aggrieved person in 11 a trial, hearing, or proceeding in or before any court, 12 department, officer, agency, regulatory body, or other 13 authority of this state, may move to suppress any electronic 14 information obtained or retained by the government entity in 15 violation of either the state or federal constitution and 16 provides that the attorney general may commence a civil action 17 to compel any government entity to comply with the provisions 18 of the bill. 19 REPEAL. The bill repeals Code chapter 808B, relating to the 20 prohibition, restriction, or authorization of the interception 21 of certain electronic communications by a person and by special 22 state agents. 23 -10- LSB 5099YH (4) 86 rh/rj 10/ 10