HB 468-FN – AS INTRODUCED
2015 SESSION
15-0399
04/05
HOUSE BILL 468-FN
AN ACT requiring a warrant to obtain electronic device location information.
SPONSORS: Rep. Kurk, Hills 2; Sen. Daniels, Dist 11; Sen. Cataldo, Dist 6
COMMITTEE: Executive Departments and Administration
This bill regulates the use of electronic device location information.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
15-0399
04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT requiring a warrant to obtain electronic device location information.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Electronic Device Location Information. Amend RSA by inserting after chapter 644 the following new chapter:
CHAPTER 644-A
ELECTRONIC DEVICE LOCATION INFORMATION
644-A:1 Definitions. In this chapter:
I. “Electronic communication service” means a service that provides users the ability to send or receive wire or electronic communications.
II. “Electronic device” means a device that enables access to or use of an electronic communication service, remote computing service, or location information service, including without limitation a cellular telephone.
III. “Government entity” means a federal, state, or local agency, including but not limited to a law enforcement agency or any other investigative entity, department, division, bureau, board, or commission, or an individual acting or purporting to act for or on behalf of a federal, state, or local agency. “Government entity” shall not apply to a federal government agency to the extent that federal statute preempts such application.
IV. “Location information” means information concerning the location of an electronic device, including both the current location and any prior location of the device that, in whole or in part, is generated, derived from, or obtained by the operation of an electronic device.
V. “Location information service” means a global positioning service or other mapping or directional information service.
VI. “Owner” means the individual or person having the legal title, claim, or right to an electronic device.
VII. “Person” means a corporation, trust, estate, partnership, limited liability company, association, firm, or any other legal entity.
VIII. “Remote computing service” means computer storage or processing services provided by means of an electronic communication service.
IX. “User” means an individual, person, or government entity that uses an electronic device.
644-A:2 Warrant Required for Acquisition of Location Information.
I. Except as provided in this chapter, a government entity shall not obtain location information from an electronic device without a warrant issued by a judge based on probable cause and on a case-by-case basis.
II. No government entity shall place, locate, or install an electronic device on the person or property of another, or obtain location information from such an electronic device, without a warrant issued by a judge based on probable cause and on a case-by-case basis.
644-A:3 Exceptions to Warrant Requirement. A government entity may obtain the location information without a warrant:
I. To respond to a call for emergency services;
II. With the informed consent of the owner or user of the electronic device concerned, except when the device is known or believed by the owner or user to be in the possession of a third party known to the owner or user;
III. With the informed consent of the parent or foster parent of a minor who is the owner or user, or the legal guardian or next of kin of the owner or user, if the owner or user is believed to be deceased or reported missing and unable to be contacted;
IV. If the government entity reasonably believes that an emergency involving immediate danger of death or serious physical injury to a person requires the disclosure, without delay, of location information concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger, and the possessor of the location information, in good faith, believes that an emergency involving danger of death or serious physical injury to a person requires the disclosure without delay;
V. Pursuant to a legally-recognized exception to the warrant requirement;
VI. With the informed consent of the employee, if the government entity is the owner of the electronic device and the user is employed by the government entity or the device is attached to personal property owned by the government entity; or
VII. Pursuant to a court-ordered ignition interlock device installed in a motor vehicle.
644-A:4 Conditions of Use of Location Information. No individual or person shall, without consent, place, locate, or install an electronic device on the person or property of another and obtain location information from such electronic device. No such consent shall be required by the parent, foster parent, or legal guardian of a minor or by the legal guardian for the subject of his or her guardianship.
644-A:5 Action Against a Corporation. This chapter shall not be construed to create a cause of action against a corporation or its officers, employees, or agents for providing location information to a government entity in accordance with the provisions of this chapter.
644-A:6 Penalties.
I. A government entity that purposely violates this chapter shall be guilty of a class B misdemeanor.
II. An individual or person who is injured as a result of a violation of this chapter may file a civil action against a government entity, individual, or person that fails to comply with the provisions of this chapter.
2 Effective Date. This act shall take effect July 1, 2015.
LBAO
15-0399
HB 468-FN - FISCAL NOTE
AN ACT requiring a warrant to obtain electronic device location information.
FISCAL IMPACT:
The Judicial Branch and the Department of Justice state this bill, as introduced, may increase state expenditures by an indeterminable amount in FY 2016 and each year thereafter. There is no fiscal impact on county and local expenditures or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch and the Department of Justice state this bill requires a judge to issue a warrant to obtain the location information of an electronic tracking device or to place, locate, or install an electronic device on the person or property of another. The bill contains a class B misdemeanor for any violations and allows for civil damages action. There is no method to determine how many warrant requests or charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the Judicial Branch has provided the potential costs associated with the penalties and warrant requests contained in this bill, where they can be determined. See the table below for average cost information:
FY 2016
FY 2017
Judicial Branch*
Class B Misdemeanor
$48
$51
Appeals
Varies
Varies
Warrant Request – Circuit Court
$69
$71
Warrant Request – Superior Court
$271
$284
Complex Civil Case
$707
$728
*It should be noted average case cost estimates for FY 2016 and FY 2017 are based on data that is more than nine years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Department of Justice investigates and prosecutes public officials for criminal conduct committed in their official capacity. If this bill results in the Department needing to investigate and prosecute significantly more cases, then there may be an indeterminable increase in costs to the Department.