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S1349aa..............................................by JUDICIARY AND RULES
ELECTRONIC COMMUNICATION - Amends existing law to define terms; to provide
references to electronic communications; and to revise provisions relating
to the provision and interception of certain communication services; and to
revise prohibitions relating to the interception of certain communication
services.
01/31 Senate intro - 1st rdg - to printing
02/01 Rpt prt - to Jud
02/11 Rpt out - rec d/p - to 2nd rdg
02/12 2nd rdg - to 3rd rdg
02/13 To 14th Ord
02/19 Rpt out amen - to engros
02/20 Rpt engros - 1st rdg - to 2nd rdg as amen
02/21 2nd rdg - to 3rd rdg as amen
02/26 3rd rdg as amen - PASSED - 33-0-2
AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Burtenshaw,
Cameron, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde,
Hill, Ingram, Ipsen, Keough, King-Barrutia, Little, Lodge, Marley,
Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner,
Stennett, Thorne, Wheeler, Williams
NAYS -- None
Absent and excused -- Bunderson, Hawkins
Floor Sponsor - Darrington
Title apvd - to House
02/27 House intro - 1st rdg - to Jud
03/12 Rpt out - rec d/p - to 2nd rdg
03/13 2nd rdg - to 3rd rdg
Rls susp - PASSED - 64-2-4
AYES -- Aikele, Barraclough, Bedke, Bell, Black, Block, Boe, Bolz,
Bradford, Bruneel, Callister, Campbell, Clark, Collins, Crow, Deal,
Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner,
Gould, Hadley, Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet,
Jones, Kendell, Kunz, Lake, Langford, Loertscher, Mader, Martinez,
McKague, Meyer, Montgomery, Moyle, Pearce, Pischner, Pomeroy,
Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman,
Smith(33), Smith(23), Smylie, Stevenson, Stone, Tilman, Trail,
Wheeler, Wood, Young, Mr. Speaker
NAYS -- Barrett, Bieter
Absent and excused -- Cuddy, Kellogg, Mortensen, Shepherd
Floor Sponsor - Hammond
Title apvd - to Senate
03/13 To enrol
03/14 Rpt enrol - Pres signed - Sp signed
03/15 To Governor
03/22 Governor signed
Session Law Chapter 223
Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1349
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO COMMUNICATIONS SECURITY; AMENDING SECTION 18-6701, IDAHO CODE, TO
3 FURTHER DEFINE TERMS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
4 18-6702, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS, TO
5 PROHIBIT THE INTENTIONAL DISCLOSURE OR ENDEAVOR TO DISCLOSE CONTENTS OF
6 INTERCEPTED WIRE, ELECTRONIC OR ORAL COMMUNICATIONS IN CERTAIN CIRCUM-
7 STANCES, TO PROVIDE CORRECT TERMINOLOGY, TO PROHIBIT SPECIFIED CONDUCT
8 RELATING TO THE INTERCEPTION AND ACCESS OF CERTAIN COMMUNICATIONS, TO
9 ALLOW PROVIDERS OF ELECTRONIC COMMUNICATION SERVICES TO RECORD THE FACT
10 THAT WIRE OR ELECTRONIC COMMUNICATION WAS INITIATED OR COMPLETED IN ORDER
11 TO PROTECT CERTAIN PERSONS FROM THE FRAUDULENT, UNLAWFUL OR ABUSIVE USE OF
12 SUCH SERVICE, TO PROVIDE THAT PERSONS OR ENTITIES PROVIDING ELECTRONIC
13 COMMUNICATION SERVICE TO THE PUBLIC SHALL NOT INTENTIONALLY DIVULGE THE
14 CONTENTS OF COMMUNICATIONS OTHER THAN TO SPECIFIED PERSONS, TO PROVIDE
15 EXCEPTIONS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 18-6703,
16 IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS AND TO A
17 PROVIDER OF WIRE OR ELECTRONIC COMMUNICATION SERVICE AND TO PROVIDE THAT
18 IT SHALL NOT BE UNLAWFUL TO ADVERTISE FOR SALE CERTAIN DEVICES IF SUCH
19 ADVERTISEMENT IS MAILED, SENT OR CARRIED SOLELY TO A DOMESTIC PROVIDER OF
20 WIRE OR ELECTRONIC COMMUNICATION SERVICE OR TO AGENCIES AND POLITICAL SUB-
21 DIVISIONS OF THE FEDERAL OR STATE GOVERNMENTS THAT ARE AUTHORIZED TO USE
22 SUCH DEVICES; AMENDING SECTION 18-6704, IDAHO CODE, TO PROVIDE REFERENCE
23 TO ELECTRONIC COMMUNICATION INTERCEPTING DEVICES; AMENDING SECTION
24 18-6705, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS AND
25 TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 18-6706, IDAHO CODE, TO
26 PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS AND TO MAKE TECHNICAL COR-
27 RECTIONS; AMENDING SECTION 18-6707, IDAHO CODE, TO PROVIDE REFERENCE TO
28 ELECTRONIC COMMUNICATIONS; AMENDING SECTION 18-6708, IDAHO CODE, TO PRO-
29 VIDE REFERENCE TO ELECTRONIC COMMUNICATIONS, TO PROVIDE CODE REFERENCES,
30 TO PROVIDE THAT A JUDGE MAY ENTER AN EX PARTE ORDER AUTHORIZING INTERCEP-
31 TION OF CERTAIN COMMUNICATIONS WITHIN THE STATE OF IDAHO, TO PROVIDE REF-
32 ERENCES TO PROVIDERS OF WIRE OR ELECTRONIC COMMUNICATION SERVICE, TO PRO-
33 VIDE THAT CERTAIN PERSONS FURNISHING FACILITIES OR TECHNICAL ASSISTANCE
34 SHALL BE COMPENSATED FOR REASONABLE EXPENSES, TO PROVIDE THAT THE THIRTY
35 DAY PERIOD FOR AN ORDER AUTHORIZING INTERCEPTION OF CERTAIN COMMUNICATIONS
36 BEGINS ON THE EARLIER OF THE DAY ON WHICH THE INVESTIGATIVE OR LAW
37 ENFORCEMENT OFFICER BEGINS TO CONDUCT AN INTERCEPTION UNDER THE ORDER OR
38 TEN DAYS AFTER THE ORDER IS ENTERED, TO PROVIDE THAT IF AN INTERCEPTED
39 COMMUNICATION IS IN A CODE OR FOREIGN LANGUAGE AND AN EXPERT IN THAT FOR-
40 EIGN LANGUAGE OR CODE IS NOT REASONABLY AVAILABLE MINIMIZATION MAY BE
41 ACCOMPLISHED AS SOON AS PRACTICABLE AFTER THE INTERCEPTION, TO PROVIDE
42 THAT AN INTERCEPTION MAY BE CONDUCTED BY SPECIFIC PERSONS ACTING UNDER THE
43 SUPERVISION OF OFFICERS AUTHORIZED TO CONDUCT THE INTERCEPTION, TO MAKE A
44 GRAMMATICAL CORRECTION, TO MAKE TECHNICAL CORRECTIONS, TO PROVIDE THAT
45 REMEDIES AND SANCTIONS SET FORTH IN THE SECTION ARE THE ONLY JUDICIAL
46 REMEDIES AND SANCTIONS FOR NONCONSTITUTIONAL VIOLATIONS OF THE CHAPTER
2
1 INVOLVING THE INTERCEPTION OF ELECTRONIC COMMUNICATIONS, TO PROVIDE THAT
2 CERTAIN REQUIREMENTS RELATING TO THE SPECIFICATION OF FACILITIES FROM
3 WHICH OR THE PLACE WHERE A COMMUNICATION IS TO BE INTERCEPTED DO NOT APPLY
4 IN CERTAIN CIRCUMSTANCES, TO PROVIDE THAT AN INTERCEPTION OF A COMMUNICA-
5 TION UNDER AN ORDER DOES NOT BEGIN UNTIL THE PLACE WHERE THE COMMUNICATION
6 IS TO BE INTERCEPTED IS ASCERTAINED BY THE PERSON IMPLEMENTING THE ORDER,
7 TO PROVIDE THAT PROVIDERS OF WIRE OR ELECTRONIC COMMUNICATIONS SERVICES
8 MAY MOVE THE COURT TO MODIFY OR QUASH AN ORDER ON THE GROUND THAT ASSIS-
9 TANCE CANNOT BE PERFORMED IN A TIMELY OR REASONABLE FASHION AND TO PROVIDE
10 THAT THE COURT SHALL DECIDE SUCH A MOTION EXPEDITIOUSLY UPON NOTICE TO THE
11 STATE; AND AMENDING SECTION 18-6709, IDAHO CODE, TO PROVIDE REFERENCE TO
12 ELECTRONIC COMMUNICATIONS.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 18-6701, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 18-6701. DEFINITIONS. Definitions as used in this chapter:
17 (1) "Wire communication" means any communication aural transfer made in
18 whole or in part through the use of facilities for the transmission of commu-
19 nications by the aid of wire, cable, or other like connection between the
20 point of origin and the point of reception (including the use of such connec-
21 tion in a switching station), furnished or operated by any person engaged as a
22 common carrier in providing or operating such facilities for the transmission
23 of intrastate, interstate or foreign communications.
24 (2) "Oral communication" means any oral communication uttered by a person
25 exhibiting an expectation that such communication is not subject to intercep-
26 tion under circumstances justifying an such expectation that said communica-
27 tion is not subject to interception but such term does not include any elec-
28 tronic communication.
29 (3) "Intercept" means the aural or other acquisition of the contents of
30 any wire, electronic or oral communication through the use of any electronic,
31 mechanical, or other device.
32 (4) "Electronic, mechanical, or other device" means any device or appara-
33 tus which can be used to intercept a wire, electronic or oral communication
34 other than:
35 (a) Any telephone or telegraph instrument, equipment or facility or any
36 component thereof:
37 (i) Ffurnished to the subscriber or user by a communications common
38 carrier provider of wire or electronic communication service in the
39 ordinary course of its business and being used by the subscriber or
40 user in the ordinary course of its business, or furnished by such
41 subscriber or user for connection to the facilities of such service
42 and used in the ordinary course of its business; or
43 (ii) Bbeing used by a communications common carrier provider of wire
44 or electronic communication service in the ordinary course of its
45 business, or by an investigative or law enforcement officer in the
46 ordinary course of his duties;
47 (b) A hearing aid or similar device being used to correct subnormal hear-
48 ing to not better than normal;
49 (5) "Person" means any employee or agent of the state or political subdi-
50 vision thereof and any individual, partnership, association, joint stock com-
51 pany, trust, cooperative, or corporation.
52 (6) "Investigative or law enforcement officer" means any officer of the
3
1 state of Idaho who is empowered by law to conduct investigations of, or to
2 make arrests for, offenses enumerated in this chapter and any attorney autho-
3 rized by law to prosecute or participate in the prosecution of such offenses.
4 (7) "Contents" when used with respect to any wire, electronic or oral
5 communication includes any information concerning the identity of the parties
6 to such communication or the existence, substance, purport, or meaning of that
7 communication.
8 (8) "Judge of competent jurisdiction" means a justice of the supreme
9 court or a judge of a district court.
10 (9) "Aggrieved person" means a person who was a party to any illegally
11 intercepted wire, electronic or oral communication or a person against whom
12 the interception was illegally directed.
13 (10) "Communications common carrier" means any person engaged as a common
14 carrier for hire, in intrastate, interstate or foreign communication by wire
15 or radio, or in intrastate, interstate, or foreign radio transmission of
16 energy "Electronic communication" means any transfer of signs, signals, writ-
17 ing, images, sounds, data or intelligence of any nature transmitted in whole
18 or in part by a wire, radio, electromagnetic, photoelectronic or photooptical
19 system, but does not include:
20 (a) Any wire or oral communication;
21 (b) Any communication made through a tone-only paging device;
22 (c) Any communication from a tracking device, as defined in 18 U.S.C.
23 section 3117; or
24 (d) Electronic fund transfer information stored by a financial institu-
25 tion in a communications system used for the electronic storage and trans-
26 fer of funds.
27 (11) "User" means any person or entity who:
28 (a) Uses an electronic communication service; and
29 (b) Is authorized by the provider of such service to engage in such use.
30 (12) "Electronic communications system" means any wire, radio,
31 electromagnetic, photoelectronic or photooptical facilities for the transmis-
32 sion of electronic communications, and any computer facilities or related
33 electronic equipment for the electronic storage of such communications.
34 (13) "Electronic communication service" means any service that provides to
35 the users thereof the ability to send or receive wire or electronic communica-
36 tions.
37 (14) "Readily accessible to the general public" means, with respect to a
38 radio communication, that such communication is not:
39 (a) Scrambled or encrypted;
40 (b) Transmitted using modulation techniques, the essential parameters of
41 which have been withheld from the public with the intention of preserving
42 the privacy of such communication;
43 (c) Carried on a subcarrier or other signal subsidiary to a radio trans-
44 mission;
45 (d) Transmitted over a communication system provided by a common carrier,
46 unless the communication is a tone-only paging system communication; or
47 (e) Transmitted on frequencies set forth in 18 U.S.C. section
48 2510(16)(E).
49 (15) "Electronic storage" means:
50 (a) Any temporary, intermediate storage of a wire or electronic communi-
51 cation incidental to the electronic transmission thereof; and
52 (b) Any storage of such communication by an electronic communication ser-
53 vice for purposes of backup protection of such communication.
54 (16) "Aural transfer" means a transfer containing the human voice at any
55 point between and including the point of origin and the point of reception.
4
1 SECTION 2. That Section 18-6702, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 18-6702. INTERCEPTION AND DISCLOSURE OF WIRE, ELECTRONIC OR ORAL COMMUNI-
4 CATIONS PROHIBITED. (1) Except as otherwise specifically provided in this
5 chapter, any person who:
6 (a) Willfully intercepts, endeavors to intercept, or procures any other
7 person to intercept or endeavor to intercept any wire, electronic or oral
8 communication; or
9 (b) Willfully uses, endeavors to use, or procures any other person to use
10 or endeavor to use any electronic, mechanical, or other device to inter-
11 cept any oral communication when:
12 1. Such device is affixed to, or otherwise transmits a signal
13 through, a wire, cable, or other like connection used in wire commu-
14 nication; or
15 2. Such device transmits communications by radio or interferes with
16 the transmission of such communication; or
17 (c) Willfully discloses, or endeavors to disclose, to any other person
18 the contents of any wire, electronic or oral communication, knowing or
19 having reason to know that the information was obtained through the inter-
20 ception of a wire, electronic or oral communication in violation of this
21 subsection; or
22 (d) Willfully uses, or endeavors to use, the contents of any wire, elec-
23 tronic or oral communication, knowing or having reason to know that the
24 information was obtained through the interception of a wire, electronic or
25 oral communication in violation of this subsection; or
26 (e) Intentionally discloses or endeavors to disclose to any other person
27 the contents of any wire, electronic or oral communication, intercepted by
28 means authorized by subsection (2)(b), (c), (f) or (g) of this section or
29 by section 18-6708, Idaho Code, if that person:
30 (i) Knows or has reason to know that the information was obtained
31 through the interception of such communication in connection with a
32 criminal investigation; and
33 (ii) Has obtained or received the information in connection with a
34 criminal investigation with the intent to improperly obstruct, impede
35 or interfere with a duly authorized criminal investigation, shall be
36 guilty of a felony and is punishable by imprisonment in the state
37 prison for a term not to exceed five (5) years or by a fine not to
38 exceed five thousand dollars ($5,000), or by both fine and imprison-
39 ment.
40 (2) (a) It is lawful under this chapter for an operator of a switchboard,
41 or an officer, employee, or agent of any communication common carrier a
42 provider of wire or electronic communication service whose facilities are
43 used in the transmission of a wire or electronic communication to inter-
44 cept, disclose, or use that communication in the normal course of his
45 employment while engaged in any activity which is a necessary incident to
46 the rendition of his service or to the protection of the rights or prop-
47 erty of the carrier of such communication; provided, that said communica-
48 tion common carriers provider of that service, except that a provider of
49 wire communication service to the public shall not utilize service observ-
50 ing or random monitoring except for mechanical or service quality control
51 checks.
52 (b) It is lawful under this chapter for an officer, employee, or agent of
53 the federal communications commission, in the normal course of his employ-
54 ment and in discharge of the monitoring responsibilities exercised by the
5
1 commission in the enforcement of 47 U.S.C. ch. 5, to intercept a wire,
2 communication electronic or oral communication transmitted by radio or to
3 disclose or use the information thereby obtained.
4 (c) It is lawful under this chapter for a law enforcement officer or a
5 person acting under the direction of a law enforcement officer to inter-
6 cept a wire, electronic or oral communication when such person is a party
7 to the communication or one (1) of the parties to the communication has
8 given prior consent to such interception.
9 (d) It is lawful under this chapter for a person to intercept a wire,
10 electronic or oral communication when one (1) of the parties to the commu-
11 nication have has given prior consent to such interception.
12 (e) It is unlawful to intercept any communication for the purpose of com-
13 mitting any criminal act.
14 (f) It is lawful under this chapter for an employee of a telephone com-
15 pany to intercept a wire communication for the sole purpose of tracing the
16 origin of such communication when the interception is requested by an
17 appropriate law enforcement agency or the recipient of the communication
18 and the recipient alleges that the communication is obscene, harassing, or
19 threatening in nature.
20 (g) It is lawful under this chapter for an employee of a law enforcement
21 agency, fire department or ambulance service, while acting in the scope of
22 his employment, and while a party to the communication, to intercept and
23 record incoming wire or electronic communications.
24 (h) It shall be unlawful under this chapter for any person:
25 (i) To intercept or access an electronic communication made through
26 an electronic communication system that is configured so that such
27 electronic communication is readily accessible to the general public;
28 (ii) To intercept any radio communication that is transmitted:
29 (A) By any station for the use of the general public, or that
30 relates to ships, aircraft, vehicles or persons in distress;
31 (B) By any governmental, law enforcement, civil defense, pri-
32 vate land mobile or public safety communications system, includ-
33 ing police and fire, readily accessible to the public;
34 (C) By a station operating on an authorized frequency within
35 the bands allocated to the amateur, citizens band or general
36 mobile radio services; or
37 (D) By any marine or aeronautical communication system;
38 (iii) To engage in any conduct that:
39 (A) Is prohibited by 47 U.S.C. section 553 (federal communica-
40 tions act of 1934); or
41 (B) Is excepted from the application of 47 U.S.C. section 605
42 (federal communications act of 1934);
43 (iv) To intercept any wire or electronic communication, the trans-
44 mission of which is causing harmful interference to any lawfully
45 operating station or consumer electronic equipment to the extent it
46 is necessary to identify the source of such interference; or
47 (v) For other users of the same frequency to intercept any radio
48 communication, if such communication is not scrambled or encrypted,
49 made through a system that utilizes frequencies monitored by individ-
50 uals engaged in the provision or the use of such system.
51 (i) It shall be lawful under this chapter for a provider of electronic
52 communication service to record the fact that a wire or electronic commu-
53 nication was initiated or completed in order to protect such provider,
54 another provider furnishing service toward the completion of the wire or
55 electronic communication or a user of that service from the fraudulent,
6
1 unlawful or abusive use of such service.
2 (3) (a) Except as provided in subsection (3)(b) of this section, a per-
3 son or entity providing an electronic communication service to the public
4 shall not intentionally divulge the contents of any communication other
5 than to such person or entity or an agent thereof while in transmission on
6 that service, to any person or entity other than an addressee or intended
7 recipient of such communication or an agent of such addressee or intended
8 recipient.
9 (b) A person or entity providing electronic communication service to the
10 public may divulge the contents of any such communication:
11 (i) As otherwise authorized in section 18-6707, Idaho Code, or sub-
12 section (2)(a) of this section;
13 (ii) With the lawful consent of the originator or any addressee or
14 intended recipient of such communication;
15 (iii) To a person employed or authorized, or whose facilities are
16 used, to forward such communication to its destination; or
17 (iv) If such contents were inadvertently obtained by the service
18 provider and appear to pertain to the commission of a crime, if such
19 divulgence is made to a law enforcement agency.
20 SECTION 3. That Section 18-6703, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-6703. MANUFACTURE, DISTRIBUTION, POSSESSION, AND ADVERTISING OF WIRE,
23 ELECTRONIC OR ORAL COMMUNICATION INTERCEPTING DEVICES PROHIBITED. (1) Except
24 as otherwise specifically provided in this chapter any person who willfully:
25 (a) Sends through the mail or sends or carries any electronic, mechani-
26 cal, or other device, with the intention of rendering it primarily useful
27 for the purpose of the illegal interception of wire, electronic or oral
28 communications as specifically defined by this chapter; or
29 (b) Manufactures, assembles, possesses, or sells any electronic, mechani-
30 cal, or other device with the intention of rendering it primarily useful
31 for the purpose of the illegal interception of wire, electronic or oral
32 communications as specifically defined by this chapter, shall be guilty of
33 a felony and is punishable by imprisonment in the state penitentiary for a
34 term of five (5) years or by a fine of five thousand dollars ($5,000), or
35 by both such fine and imprisonment.
36 (2) It is lawful under this section for:
37 (a) A provider of wire or electronic communication common carrier service
38 or an officer, agent, or employee of, or a person under contract with, a
39 communication common carrier such a provider, in the normal course of the
40 communication common carrier's business; or
41 (b) An officer, agent, or employee of, or a person under contract with,
42 bidding upon contracts with, or in the course of doing business with, the
43 United States, a state, or a political subdivision thereof, in the normal
44 course of the activities of the United States, a state, or a political
45 subdivision thereof, to send through the mail, send or carry in inter-
46 state or foreign commerce, or manufacture, assemble, possess, or sell any
47 electronic, mechanical, or other device, knowing or having reason to know
48 that the design of such device renders it primarily useful for the purpose
49 of the surreptitious interception of wire, electronic or oral communica-
50 tion.
51 (3) It shall not be unlawful under this section to advertise for sale a
52 device described in subsection (1) of this section if the advertisement is
53 mailed, sent or carried solely to a domestic provider of wire or electronic
7
1 communication service or to an agency of the United States, any state, or a
2 political subdivision thereof that is duly authorized to use such device.
3 SECTION 4. That Section 18-6704, Idaho Code, be, and the same is hereby
4 amended to read as follows:
5 18-6704. CONFISCATION OF WIRE, ELECTRONIC OR ORAL COMMUNICATION INTER-
6 CEPTING DEVICES. Any electronic, mechanical, or other device used, sent, car-
7 ried, manufactured, assembled, possessed, or sold in violation of this chapter
8 may be seized and forfeited to the state.
9 SECTION 5. That Section 18-6705, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 18-6705. PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED WIRE, ELECTRONIC
12 OR ORAL COMMUNICATIONS. Whenever any wire, electronic or oral communications
13 has been intercepted, no part of the contents of such communication and no
14 evidence derived therefrom may be received in evidence in any trial, hearing,
15 or other proceeding in or before any court, grand jury, department, officer,
16 agency, regulatory body, legislative committee, or other authority of the
17 state, or a political subdivision thereof, if the disclosure of that informa-
18 tion would be in violation of this chapter.
19 SECTION 6. That Section 18-6706, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 18-6706. AUTHORIZATION FOR INTERCEPTION OF WIRE, ELECTRONIC OR ORAL COM-
22 MUNICATIONS. The prosecuting attorney of any county is authorized to make
23 application to a judge of competent jurisdiction for an order authorizing or
24 approving the interception of wire, electronic or oral communications and may
25 apply to such judge for, and such judge may grant in conformity with section
26 2581 of chapter 119, title 18 U.S.C.A., and in conformity with the provisions
27 of this chapter 67, title 18, Idaho Code, an order authorizing or approving
28 the interception of wire, electronic or oral communications by investigative
29 or law enforcement officers having responsibility for the investigation of the
30 offense as to which the application is made, when such interception may pro-
31 vide or has provided evidence of the commission of the offense of murder, kid-
32 napping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs,
33 marijuana or other dangerous drugs, or other crime dangerous to life, limb, or
34 property, and punishable by imprisonment for more than one (1) year, or any
35 conspiracy to commit any of the foregoing offenses.
36 SECTION 7. That Section 18-6707, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 18-6707. AUTHORIZATION FOR DISCLOSURE AND USE OF INTERCEPTED WIRE, ELEC-
39 TRONIC OR ORAL COMMUNICATIONS. (1) Any investigative or law enforcement offi-
40 cer who, by any means authorized by this chapter, has obtained knowledge of
41 the contents of any wire, electronic or oral communication, or evidence
42 derived therefrom, may disclose such contents to another investigative or law
43 enforcement officer to the extent that such disclosure is appropriate to the
44 proper performance of the official duties of the officer making or receiving
45 the disclosure.
46 (2) Any investigative or law enforcement officer who, by any means autho-
47 rized by this chapter, has obtained knowledge of the contents of any wire,
8
1 electronic or oral communication or evidence derived therefrom may use such
2 contents to the extent such use is appropriate to the proper performance of
3 his official duties.
4 (3) Any person who has received, by any means authorized by this chapter,
5 any information concerning a wire, electronic or oral communication, or evi-
6 dence derived therefrom intercepted in accordance with the provisions of this
7 chapter may disclose the contents of that communication or such derivative
8 evidence while giving testimony under oath or affirmation in any criminal pro-
9 ceeding in any court of this state, of the United States or of any state or in
10 any political subdivision thereof.
11 (4) No otherwise privileged wire, electronic or oral communication inter-
12 cepted in accordance with, or in violation of, the provisions of this chapter
13 shall lose its privileged character.
14 (5) When an investigative or law enforcement officer, while engaged in
15 intercepting wire, electronic or oral communications in the manner authorized
16 herein, intercepts wire, electronic or oral communications relating to
17 offenses other than those specified in the order of authorization, the con-
18 tents thereof, and evidence derived therefrom, may be disclosed or used as
19 provided in subsections (1), (2) and (3) of this section.
20 SECTION 8. That Section 18-6708, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-6708. PROCEDURE FOR INTERCEPTION OF WIRE, ELECTRONIC OR ORAL COMMUNI-
23 CATIONS. (1) Each application for an order authorizing the interception of a
24 wire, electronic or oral communication shall be made in writing upon oath or
25 affirmation or by means of an oral affidavit as provided for in the Idaho
26 Rules of Criminal Practice & Procedure to a judge of competent jurisdiction
27 and shall state the applicant's authority to make such application. Each
28 application shall include the following information:
29 (a) The identity of the individual authorized to make application for
30 said order pursuant to section 18-6706(1), Idaho Code.;
31 (b) A full and complete statement of the facts and circumstances relied
32 upon by the applicant, to justify his belief that an order should be
33 issued including (i) details as to the particular offense that has been,
34 is being, or is about to be committed, (ii) except as provided in subsec-
35 tion (11) of this section, a particular description of the nature and
36 location of the facilities from which or the place where the communication
37 is to be intercepted, (iii) a particular description of the type of commu-
38 nications sought to be intercepted, (iv) the identity of the person, if
39 known, committing the offense and whose communications are to be inter-
40 cepted;
41 (c) A full and complete statement as to whether or not other investiga-
42 tive procedures have been tried and failed or why they reasonably appear
43 to be unlikely to succeed if tried or to be too dangerous;
44 (d) A statement of the period of time for which the interception is
45 required to be maintained. If the nature of the investigation is such that
46 the authorization for interception should not automatically terminate when
47 the described type of communication has been first obtained, a particular
48 description of facts establishing probable cause to believe that addi-
49 tional communications of the same type will occur thereafter;
50 (e) A full and complete statement of the facts concerning all previous
51 applications known to the individual making the applications, made to any
52 judge for authorization to intercept wire, electronic or oral communica-
53 tions involving any of the same persons, facilities or places specified in
9
1 the application, and the action taken by the judge on each such applica-
2 tion; and
3 (f) Where the application is for the extension of an order, a statement
4 setting forth the results thus far obtained from the interception, or a
5 reasonable explanation of the failure to obtain such results.
6 (2) The judge may require the applicant to furnish additional testimony
7 or documentary evidence in support of the application.
8 (3) Upon such application the judge may enter an ex parte order, as
9 requested or as modified, authorizing interception of wire, electronic or oral
10 communications within the territorial jurisdiction of the court in which the
11 judge is sitting state of Idaho if the judge determines on the basis of the
12 facts submitted by the applicant that:
13 (a) There is probable cause for belief that an individual is committing,
14 has committed, or is about to commit a particular offense enumerated in
15 section 18-6706, Idaho Code;
16 (b) There is probable cause for belief that particular communications
17 concerning that offense will be obtained through such interception;
18 (c) Normal investigative procedures have been tried and have failed or
19 reasonably appear to be unlikely to succeed if tried or to be too danger-
20 ous;
21 (d) Except as provided in subsection (11) of this section, tThere is
22 probable cause for belief that the facilities from which, or the place
23 where, the wire, electronic or oral communications are to be intercepted
24 are being used, or are about to be used, in connection with the commission
25 of such offense, or are leased to, listed in the name of, or commonly used
26 by such person.
27 (4) Each order authorizing the interception of any wire, electronic or
28 oral communication shall specify:
29 (a) The identity of the person, if known, whose communications are to be
30 intercepted;
31 (b) The nature and location of the communications facilities as to which,
32 or the place where, authority to intercept is granted;
33 (c) A particular description of the type of communication sought to be
34 intercepted, and a statement of the particular offense to which it
35 relates;
36 (d) The identity of the agency authorized to intercept the communica-
37 tions, and of the person making the application; and
38 (e) The period of time during which such interception is authorized,
39 including a statement as to whether or not the interception shall automat-
40 ically terminate when the described communication has been first
41 obtained.
42 (5) An order authorizing the interception of a wire, electronic or oral
43 communication shall, upon request of the applicant, direct that a communica-
44 tions common carrier provider of wire or electronic communication service,
45 landlord, custodian, or other person shall furnish the applicant forthwith all
46 information, facilities and technical assistance necessary to accomplish the
47 interception unobtrusively and with a minimum of interference with the ser-
48 vices that such communications common carrier service provider, landlord, cus-
49 todian or person is providing the person whose communications are to be inter-
50 cepted. Any communications common carrier provider of wire or electronic com-
51 munication service, landlord, custodian or other person furnishing such facil-
52 ities or technical assistance shall be compensated therefor by the applicant
53 at the prevailing rates for reasonable expenses incurred in providing such
54 facilities or assistance.
55 (6) No order entered under this section may authorize the interception of
10
1 any wire, electronic or oral communication for any period longer than is nec-
2 essary to achieve the objective of the authorization, nor in any event longer
3 than thirty (30) days. Such thirty (30) day period begins on the earlier of
4 the day on which the investigative or law enforcement officer begins to con-
5 duct an interception under the order or ten (10) days after the order is
6 entered. Extensions of an order may be granted, but only upon application for
7 an extension made in accordance with subsection (1) of this section and the
8 court making the findings required by subsection (3) of this section. The
9 periods of extension shall be no longer than the authorizing court deems nec-
10 essary to achieve the purposes for which it was granted and in no event for
11 longer than thirty (30) days for each extension. Every order and extension
12 thereof shall contain a provision that the authorization to intercept shall be
13 executed as soon as practicable, shall be conducted in such a way as to mini-
14 mize the interception of communications not otherwise subject to interception
15 under this chapter, and must terminate upon attainment of the authorized
16 objective, or in any event in thirty (30) days. In the event the intercepted
17 communication is in a code or foreign language and an expert in that foreign
18 language or code is not reasonably available during the interception period,
19 minimization may be accomplished as soon as practicable after such intercep-
20 tion. An interception under this chapter may be conducted in whole or in part
21 by government personnel or by an individual operating under a contract with
22 federal, state or local government and acting under the supervision of an
23 investigative or law enforcement officer authorized to conduct the intercep-
24 tion.
25 (7) Whenever an order authorizing interception is entered pursuant to
26 this chapter, the order may require reports to be made to the judge who issued
27 the order showing what progress has been made toward achievement of the autho-
28 rized objective and the need for continued interception. Such reports shall be
29 made at such intervals as the judge who may require.
30 (8) (a) The contents of any wire, electronic or oral communication inter-
31 cepted by any means authorized by this chapter shall, if possible, be
32 recorded on tape or wire or other comparable device. The recording of the
33 contents of any wire, electronic or oral communication under this subsec-
34 tion shall be done in such way as will protect the recording from editing
35 or other alterations. Immediately upon the expiration of the period of the
36 order, or extensions thereof, such recordings shall be made available to
37 the judge issuing such order and sealed under his directions. Custody of
38 the recordings shall be wherever the judge orders. They shall not be
39 destroyed except upon an order of the issuing or denying court and in any
40 event shall be kept for ten (10) years. Duplicate recordings may be made
41 for use or disclosure pursuant to the provisions of subsections (1) and
42 (2) of section 18-6707, Idaho Code, for investigations. The presence of
43 the seal provided for by this subsection, or a satisfactory explanation
44 for the absence thereof, shall be a prerequisite for the use or disclosure
45 of the contents of any wire, electronic or oral communication or evidence
46 derived therefrom under subsection (3) of section 18-6707, Idaho Code.
47 (b) Applications made and orders granted under this chapter shall be
48 sealed by the judge. Custody of the applications and orders shall be wher-
49 ever the judge directs. Such applications and orders shall be disclosed
50 only upon a showing of good cause before a judge of competent jurisdiction
51 and shall not be destroyed except on order of the issuing or denying judge
52 and in any event shall be kept for ten (10) years.
53 (c) Any violation of the provisions of this subsection may be punished as
54 contempt of the issuing or denying judge.
55 (d) Within a reasonable time but not later than ninety (90) days after
11
1 the filing of an application for an order of approval under this section
2 18-6708, Idaho Code, which is denied or the termination of the period of
3 an order or extensions thereof, the issuing or denying judge shall cause
4 to be served, on the persons named in the order or the application, and
5 such other parties to intercepted communications as the judge may deter-
6 mine in his discretion that is in the interest of justice, an inventory
7 which shall include notice of:
8 (1) The fact of the entry of the order or the application;
9 (2) The date of the entry and the period of authorized, approved or
10 disapproved interception, or the denial of the application; and
11 (3) The fact that during the period wire, electronic or oral commu-
12 nications were or were not intercepted.
13 The judge, upon the filing of a motion, may in his discretion make available
14 to such person or his counsel for inspection such portions of the intercepted
15 communications, applications and orders as the judge determines to be in the
16 interest of justice. On an ex parte showing of good cause to a judge of compe-
17 tent jurisdiction the serving of the inventory required by this subsection may
18 be postponed.
19 (9) The contents of any intercepted wire, electronic or oral communica-
20 tion or evidence derived therefrom shall not be received in evidence or other-
21 wise disclosed in any trial, hearing, or other proceeding in a federal or
22 state court unless each party, not less than ten (10) days before the trial,
23 hearing, or proceeding has been furnished with a copy of the court order and
24 accompanying application under which the interception was authorized. This ten
25 (10) day period may be waived by the court if it finds that it was not possi-
26 ble to furnish the party with the above information ten (10) days before the
27 trial, hearing, or proceeding and that the party will not be prejudiced by the
28 delay in receiving such information.
29 (10) (a) Any aggrieved person in any trial, hearing, or proceeding in or
30 before any court, department, officer, agency, regulatory body, or other
31 authority of the United States, a state, or a political subdivision
32 thereof, may move to suppress the contents of any intercepted wire, elec-
33 tronic or oral communication, or evidence derived therefrom, on the
34 grounds that:
35 1. The communication was unlawfully intercepted;
36 2. The order of authorization under which it was intercepted is
37 insufficient on its face; or
38 3. The interception was not made in conformity with the order of
39 authorization.
40 Such motion shall be made before the trial, hearing, or proceeding, pursu-
41 ant to the Idaho rules of criminal or civil procedure or the hearing rules
42 of the respective body, as applicable.
43 (b) In addition to any other right to appeal, the state of Idaho shall
44 have the right to appeal from an order granting a motion to suppress made
45 under paragraph (a) of this subsection. Such appeal shall be taken within
46 thirty (30) days after the date the order was entered.
47 (c) The remedies and sanctions described in this section with respect to
48 the interception of electronic communications are the only judicial reme-
49 dies and sanctions for nonconstitutional violations of this chapter
50 involving such communications.
51 (11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section
52 relating to the specification of the facilities from which, or the place
53 where, the communication is to be intercepted do not apply if:
54 (a) In the case of an application with respect to the interception of an
55 oral communication:
12
1 (i) The application contains a full and complete statement as to
2 why such specification is not practical and identifies the person
3 committing the offense and whose communications are to be inter-
4 cepted; and
5 (ii) The judge finds that such specification is not practical; and
6 (b) In the case of an application with respect to a wire or electronic
7 communication:
8 (i) The application identifies the person believed to be committing
9 the offense and whose communications are to be intercepted and the
10 applicant makes a showing that there is probable cause to believe
11 that the person's actions could have the effect of thwarting inter-
12 ception from a specified facility;
13 (ii) The judge finds that such showing has been adequately made; and
14 (iii) The order authorizing or approving the interception is limited
15 to interception only for such time as it is reasonable to presume
16 that the person identified in the application is or was reasonably
17 proximate to the instrument through which such communication will be
18 or was transmitted.
19 (12) An interception of a communication under an order with respect to
20 which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do
21 not apply by reason of subsection (11)(a) of this section shall not begin
22 until the place where the communication is to be intercepted is ascertained by
23 the person implementing the interception order. A provider of wire or elec-
24 tronic communications service that has received an order as provided for in
25 subsection (11)(b) of this section may move the court to modify or quash the
26 order on the ground that its assistance with respect to the interception can-
27 not be performed in a timely or reasonable fashion. The court, upon notice to
28 the state, shall decide such a motion expeditiously.
29 SECTION 9. That Section 18-6709, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 18-6709. RECOVERY OF CIVIL DAMAGES AUTHORIZED. Any person whose wire,
32 electronic or oral communication is intercepted, disclosed, or used in viola-
33 tion of this chapter shall have a civil cause of action against any person who
34 intercepts, discloses, uses, or procures any other person to intercept, dis-
35 close, or use such communications, and shall be entitled to recover from any
36 such person:
37 (a) Actual damages, but not less than liquidated damages computed at the
38 rate of one hundred dollars ($100) a day for each day of violation or one
39 thousand dollars ($1,000), whichever is higher;
40 (b) Punitive damages; and
41 (c) A reasonable attorney's fee and other litigation costs reasonably
42 incurred.
43 A good faith reliance on a court order shall constitute a complete defense to
44 any civil or criminal action under the laws of this state.
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
Moved by Darrington
Seconded by Stegner
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1349
1 AMENDMENT TO SECTION 2
2 On page 5 of the printed bill, in line 24, following "shall" insert:
3 "not".
4 CORRECTIONS TO TITLE
5 On page 1, in line 7, delete "PROHIBIT SPECIFIED" and insert: "PROVIDE
6 THAT CERTAIN"; in line 8, delete "CERTAIN"; and also in line 8, following
7 "COMMUNICATIONS" insert: "SHALL NOT BE UNLAWFUL".
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1349, As Amended
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO COMMUNICATIONS SECURITY; AMENDING SECTION 18-6701, IDAHO CODE, TO
3 FURTHER DEFINE TERMS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
4 18-6702, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS, TO
5 PROHIBIT THE INTENTIONAL DISCLOSURE OR ENDEAVOR TO DISCLOSE CONTENTS OF
6 INTERCEPTED WIRE, ELECTRONIC OR ORAL COMMUNICATIONS IN CERTAIN CIRCUM-
7 STANCES, TO PROVIDE CORRECT TERMINOLOGY, TO PROVIDE THAT CERTAIN CONDUCT
8 RELATING TO THE INTERCEPTION AND ACCESS OF COMMUNICATIONS SHALL NOT BE
9 UNLAWFUL, TO ALLOW PROVIDERS OF ELECTRONIC COMMUNICATION SERVICES TO
10 RECORD THE FACT THAT WIRE OR ELECTRONIC COMMUNICATION WAS INITIATED OR
11 COMPLETED IN ORDER TO PROTECT CERTAIN PERSONS FROM THE FRAUDULENT, UNLAW-
12 FUL OR ABUSIVE USE OF SUCH SERVICE, TO PROVIDE THAT PERSONS OR ENTITIES
13 PROVIDING ELECTRONIC COMMUNICATION SERVICE TO THE PUBLIC SHALL NOT INTEN-
14 TIONALLY DIVULGE THE CONTENTS OF COMMUNICATIONS OTHER THAN TO SPECIFIED
15 PERSONS, TO PROVIDE EXCEPTIONS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING
16 SECTION 18-6703, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICA-
17 TIONS AND TO A PROVIDER OF WIRE OR ELECTRONIC COMMUNICATION SERVICE AND TO
18 PROVIDE THAT IT SHALL NOT BE UNLAWFUL TO ADVERTISE FOR SALE CERTAIN
19 DEVICES IF SUCH ADVERTISEMENT IS MAILED, SENT OR CARRIED SOLELY TO A
20 DOMESTIC PROVIDER OF WIRE OR ELECTRONIC COMMUNICATION SERVICE OR TO AGEN-
21 CIES AND POLITICAL SUBDIVISIONS OF THE FEDERAL OR STATE GOVERNMENTS THAT
22 ARE AUTHORIZED TO USE SUCH DEVICES; AMENDING SECTION 18-6704, IDAHO CODE,
23 TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATION INTERCEPTING DEVICES;
24 AMENDING SECTION 18-6705, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC
25 COMMUNICATIONS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
26 18-6706, IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS AND
27 TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 18-6707, IDAHO CODE, TO
28 PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS; AMENDING SECTION 18-6708,
29 IDAHO CODE, TO PROVIDE REFERENCE TO ELECTRONIC COMMUNICATIONS, TO PROVIDE
30 CODE REFERENCES, TO PROVIDE THAT A JUDGE MAY ENTER AN EX PARTE ORDER
31 AUTHORIZING INTERCEPTION OF CERTAIN COMMUNICATIONS WITHIN THE STATE OF
32 IDAHO, TO PROVIDE REFERENCES TO PROVIDERS OF WIRE OR ELECTRONIC COMMUNICA-
33 TION SERVICE, TO PROVIDE THAT CERTAIN PERSONS FURNISHING FACILITIES OR
34 TECHNICAL ASSISTANCE SHALL BE COMPENSATED FOR REASONABLE EXPENSES, TO PRO-
35 VIDE THAT THE THIRTY DAY PERIOD FOR AN ORDER AUTHORIZING INTERCEPTION OF
36 CERTAIN COMMUNICATIONS BEGINS ON THE EARLIER OF THE DAY ON WHICH THE
37 INVESTIGATIVE OR LAW ENFORCEMENT OFFICER BEGINS TO CONDUCT AN INTERCEPTION
38 UNDER THE ORDER OR TEN DAYS AFTER THE ORDER IS ENTERED, TO PROVIDE THAT IF
39 AN INTERCEPTED COMMUNICATION IS IN A CODE OR FOREIGN LANGUAGE AND AN
40 EXPERT IN THAT FOREIGN LANGUAGE OR CODE IS NOT REASONABLY AVAILABLE
41 MINIMIZATION MAY BE ACCOMPLISHED AS SOON AS PRACTICABLE AFTER THE INTER-
42 CEPTION, TO PROVIDE THAT AN INTERCEPTION MAY BE CONDUCTED BY SPECIFIC PER-
43 SONS ACTING UNDER THE SUPERVISION OF OFFICERS AUTHORIZED TO CONDUCT THE
44 INTERCEPTION, TO MAKE A GRAMMATICAL CORRECTION, TO MAKE TECHNICAL CORREC-
45 TIONS, TO PROVIDE THAT REMEDIES AND SANCTIONS SET FORTH IN THE SECTION ARE
46 THE ONLY JUDICIAL REMEDIES AND SANCTIONS FOR NONCONSTITUTIONAL VIOLATIONS
2
1 OF THE CHAPTER INVOLVING THE INTERCEPTION OF ELECTRONIC COMMUNICATIONS, TO
2 PROVIDE THAT CERTAIN REQUIREMENTS RELATING TO THE SPECIFICATION OF FACILI-
3 TIES FROM WHICH OR THE PLACE WHERE A COMMUNICATION IS TO BE INTERCEPTED DO
4 NOT APPLY IN CERTAIN CIRCUMSTANCES, TO PROVIDE THAT AN INTERCEPTION OF A
5 COMMUNICATION UNDER AN ORDER DOES NOT BEGIN UNTIL THE PLACE WHERE THE COM-
6 MUNICATION IS TO BE INTERCEPTED IS ASCERTAINED BY THE PERSON IMPLEMENTING
7 THE ORDER, TO PROVIDE THAT PROVIDERS OF WIRE OR ELECTRONIC COMMUNICATIONS
8 SERVICES MAY MOVE THE COURT TO MODIFY OR QUASH AN ORDER ON THE GROUND THAT
9 ASSISTANCE CANNOT BE PERFORMED IN A TIMELY OR REASONABLE FASHION AND TO
10 PROVIDE THAT THE COURT SHALL DECIDE SUCH A MOTION EXPEDITIOUSLY UPON
11 NOTICE TO THE STATE; AND AMENDING SECTION 18-6709, IDAHO CODE, TO PROVIDE
12 REFERENCE TO ELECTRONIC COMMUNICATIONS.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 18-6701, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 18-6701. DEFINITIONS. Definitions as used in this chapter:
17 (1) "Wire communication" means any communication aural transfer made in
18 whole or in part through the use of facilities for the transmission of commu-
19 nications by the aid of wire, cable, or other like connection between the
20 point of origin and the point of reception (including the use of such connec-
21 tion in a switching station), furnished or operated by any person engaged as a
22 common carrier in providing or operating such facilities for the transmission
23 of intrastate, interstate or foreign communications.
24 (2) "Oral communication" means any oral communication uttered by a person
25 exhibiting an expectation that such communication is not subject to intercep-
26 tion under circumstances justifying an such expectation that said communica-
27 tion is not subject to interception but such term does not include any elec-
28 tronic communication.
29 (3) "Intercept" means the aural or other acquisition of the contents of
30 any wire, electronic or oral communication through the use of any electronic,
31 mechanical, or other device.
32 (4) "Electronic, mechanical, or other device" means any device or appara-
33 tus which can be used to intercept a wire, electronic or oral communication
34 other than:
35 (a) Any telephone or telegraph instrument, equipment or facility or any
36 component thereof:
37 (i) Ffurnished to the subscriber or user by a communications common
38 carrier provider of wire or electronic communication service in the
39 ordinary course of its business and being used by the subscriber or
40 user in the ordinary course of its business, or furnished by such
41 subscriber or user for connection to the facilities of such service
42 and used in the ordinary course of its business; or
43 (ii) Bbeing used by a communications common carrier provider of wire
44 or electronic communication service in the ordinary course of its
45 business, or by an investigative or law enforcement officer in the
46 ordinary course of his duties;
47 (b) A hearing aid or similar device being used to correct subnormal hear-
48 ing to not better than normal;
49 (5) "Person" means any employee or agent of the state or political subdi-
50 vision thereof and any individual, partnership, association, joint stock com-
51 pany, trust, cooperative, or corporation.
52 (6) "Investigative or law enforcement officer" means any officer of the
3
1 state of Idaho who is empowered by law to conduct investigations of, or to
2 make arrests for, offenses enumerated in this chapter and any attorney autho-
3 rized by law to prosecute or participate in the prosecution of such offenses.
4 (7) "Contents" when used with respect to any wire, electronic or oral
5 communication includes any information concerning the identity of the parties
6 to such communication or the existence, substance, purport, or meaning of that
7 communication.
8 (8) "Judge of competent jurisdiction" means a justice of the supreme
9 court or a judge of a district court.
10 (9) "Aggrieved person" means a person who was a party to any illegally
11 intercepted wire, electronic or oral communication or a person against whom
12 the interception was illegally directed.
13 (10) "Communications common carrier" means any person engaged as a common
14 carrier for hire, in intrastate, interstate or foreign communication by wire
15 or radio, or in intrastate, interstate, or foreign radio transmission of
16 energy "Electronic communication" means any transfer of signs, signals, writ-
17 ing, images, sounds, data or intelligence of any nature transmitted in whole
18 or in part by a wire, radio, electromagnetic, photoelectronic or photooptical
19 system, but does not include:
20 (a) Any wire or oral communication;
21 (b) Any communication made through a tone-only paging device;
22 (c) Any communication from a tracking device, as defined in 18 U.S.C.
23 section 3117; or
24 (d) Electronic fund transfer information stored by a financial institu-
25 tion in a communications system used for the electronic storage and trans-
26 fer of funds.
27 (11) "User" means any person or entity who:
28 (a) Uses an electronic communication service; and
29 (b) Is authorized by the provider of such service to engage in such use.
30 (12) "Electronic communications system" means any wire, radio,
31 electromagnetic, photoelectronic or photooptical facilities for the transmis-
32 sion of electronic communications, and any computer facilities or related
33 electronic equipment for the electronic storage of such communications.
34 (13) "Electronic communication service" means any service that provides to
35 the users thereof the ability to send or receive wire or electronic communica-
36 tions.
37 (14) "Readily accessible to the general public" means, with respect to a
38 radio communication, that such communication is not:
39 (a) Scrambled or encrypted;
40 (b) Transmitted using modulation techniques, the essential parameters of
41 which have been withheld from the public with the intention of preserving
42 the privacy of such communication;
43 (c) Carried on a subcarrier or other signal subsidiary to a radio trans-
44 mission;
45 (d) Transmitted over a communication system provided by a common carrier,
46 unless the communication is a tone-only paging system communication; or
47 (e) Transmitted on frequencies set forth in 18 U.S.C. section
48 2510(16)(E).
49 (15) "Electronic storage" means:
50 (a) Any temporary, intermediate storage of a wire or electronic communi-
51 cation incidental to the electronic transmission thereof; and
52 (b) Any storage of such communication by an electronic communication ser-
53 vice for purposes of backup protection of such communication.
54 (16) "Aural transfer" means a transfer containing the human voice at any
55 point between and including the point of origin and the point of reception.
4
1 SECTION 2. That Section 18-6702, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 18-6702. INTERCEPTION AND DISCLOSURE OF WIRE, ELECTRONIC OR ORAL COMMUNI-
4 CATIONS PROHIBITED. (1) Except as otherwise specifically provided in this
5 chapter, any person who:
6 (a) Willfully intercepts, endeavors to intercept, or procures any other
7 person to intercept or endeavor to intercept any wire, electronic or oral
8 communication; or
9 (b) Willfully uses, endeavors to use, or procures any other person to use
10 or endeavor to use any electronic, mechanical, or other device to inter-
11 cept any oral communication when:
12 1. Such device is affixed to, or otherwise transmits a signal
13 through, a wire, cable, or other like connection used in wire commu-
14 nication; or
15 2. Such device transmits communications by radio or interferes with
16 the transmission of such communication; or
17 (c) Willfully discloses, or endeavors to disclose, to any other person
18 the contents of any wire, electronic or oral communication, knowing or
19 having reason to know that the information was obtained through the inter-
20 ception of a wire, electronic or oral communication in violation of this
21 subsection; or
22 (d) Willfully uses, or endeavors to use, the contents of any wire, elec-
23 tronic or oral communication, knowing or having reason to know that the
24 information was obtained through the interception of a wire, electronic or
25 oral communication in violation of this subsection; or
26 (e) Intentionally discloses or endeavors to disclose to any other person
27 the contents of any wire, electronic or oral communication, intercepted by
28 means authorized by subsection (2)(b), (c), (f) or (g) of this section or
29 by section 18-6708, Idaho Code, if that person:
30 (i) Knows or has reason to know that the information was obtained
31 through the interception of such communication in connection with a
32 criminal investigation; and
33 (ii) Has obtained or received the information in connection with a
34 criminal investigation with the intent to improperly obstruct, impede
35 or interfere with a duly authorized criminal investigation, shall be
36 guilty of a felony and is punishable by imprisonment in the state
37 prison for a term not to exceed five (5) years or by a fine not to
38 exceed five thousand dollars ($5,000), or by both fine and imprison-
39 ment.
40 (2) (a) It is lawful under this chapter for an operator of a switchboard,
41 or an officer, employee, or agent of any communication common carrier a
42 provider of wire or electronic communication service whose facilities are
43 used in the transmission of a wire or electronic communication to inter-
44 cept, disclose, or use that communication in the normal course of his
45 employment while engaged in any activity which is a necessary incident to
46 the rendition of his service or to the protection of the rights or prop-
47 erty of the carrier of such communication; provided, that said communica-
48 tion common carriers provider of that service, except that a provider of
49 wire communication service to the public shall not utilize service observ-
50 ing or random monitoring except for mechanical or service quality control
51 checks.
52 (b) It is lawful under this chapter for an officer, employee, or agent of
53 the federal communications commission, in the normal course of his employ-
54 ment and in discharge of the monitoring responsibilities exercised by the
5
1 commission in the enforcement of 47 U.S.C. ch. 5, to intercept a wire,
2 communication electronic or oral communication transmitted by radio or to
3 disclose or use the information thereby obtained.
4 (c) It is lawful under this chapter for a law enforcement officer or a
5 person acting under the direction of a law enforcement officer to inter-
6 cept a wire, electronic or oral communication when such person is a party
7 to the communication or one (1) of the parties to the communication has
8 given prior consent to such interception.
9 (d) It is lawful under this chapter for a person to intercept a wire,
10 electronic or oral communication when one (1) of the parties to the commu-
11 nication have has given prior consent to such interception.
12 (e) It is unlawful to intercept any communication for the purpose of com-
13 mitting any criminal act.
14 (f) It is lawful under this chapter for an employee of a telephone com-
15 pany to intercept a wire communication for the sole purpose of tracing the
16 origin of such communication when the interception is requested by an
17 appropriate law enforcement agency or the recipient of the communication
18 and the recipient alleges that the communication is obscene, harassing, or
19 threatening in nature.
20 (g) It is lawful under this chapter for an employee of a law enforcement
21 agency, fire department or ambulance service, while acting in the scope of
22 his employment, and while a party to the communication, to intercept and
23 record incoming wire or electronic communications.
24 (h) It shall not be unlawful under this chapter for any person:
25 (i) To intercept or access an electronic communication made through
26 an electronic communication system that is configured so that such
27 electronic communication is readily accessible to the general public;
28 (ii) To intercept any radio communication that is transmitted:
29 (A) By any station for the use of the general public, or that
30 relates to ships, aircraft, vehicles or persons in distress;
31 (B) By any governmental, law enforcement, civil defense, pri-
32 vate land mobile or public safety communications system, includ-
33 ing police and fire, readily accessible to the public;
34 (C) By a station operating on an authorized frequency within
35 the bands allocated to the amateur, citizens band or general
36 mobile radio services; or
37 (D) By any marine or aeronautical communication system;
38 (iii) To engage in any conduct that:
39 (A) Is prohibited by 47 U.S.C. section 553 (federal communica-
40 tions act of 1934); or
41 (B) Is excepted from the application of 47 U.S.C. section 605
42 (federal communications act of 1934);
43 (iv) To intercept any wire or electronic communication, the trans-
44 mission of which is causing harmful interference to any lawfully
45 operating station or consumer electronic equipment to the extent it
46 is necessary to identify the source of such interference; or
47 (v) For other users of the same frequency to intercept any radio
48 communication, if such communication is not scrambled or encrypted,
49 made through a system that utilizes frequencies monitored by individ-
50 uals engaged in the provision or the use of such system.
51 (i) It shall be lawful under this chapter for a provider of electronic
52 communication service to record the fact that a wire or electronic commu-
53 nication was initiated or completed in order to protect such provider,
54 another provider furnishing service toward the completion of the wire or
55 electronic communication or a user of that service from the fraudulent,
6
1 unlawful or abusive use of such service.
2 (3) (a) Except as provided in subsection (3)(b) of this section, a per-
3 son or entity providing an electronic communication service to the public
4 shall not intentionally divulge the contents of any communication other
5 than to such person or entity or an agent thereof while in transmission on
6 that service, to any person or entity other than an addressee or intended
7 recipient of such communication or an agent of such addressee or intended
8 recipient.
9 (b) A person or entity providing electronic communication service to the
10 public may divulge the contents of any such communication:
11 (i) As otherwise authorized in section 18-6707, Idaho Code, or sub-
12 section (2)(a) of this section;
13 (ii) With the lawful consent of the originator or any addressee or
14 intended recipient of such communication;
15 (iii) To a person employed or authorized, or whose facilities are
16 used, to forward such communication to its destination; or
17 (iv) If such contents were inadvertently obtained by the service
18 provider and appear to pertain to the commission of a crime, if such
19 divulgence is made to a law enforcement agency.
20 SECTION 3. That Section 18-6703, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-6703. MANUFACTURE, DISTRIBUTION, POSSESSION, AND ADVERTISING OF WIRE,
23 ELECTRONIC OR ORAL COMMUNICATION INTERCEPTING DEVICES PROHIBITED. (1) Except
24 as otherwise specifically provided in this chapter any person who willfully:
25 (a) Sends through the mail or sends or carries any electronic, mechani-
26 cal, or other device, with the intention of rendering it primarily useful
27 for the purpose of the illegal interception of wire, electronic or oral
28 communications as specifically defined by this chapter; or
29 (b) Manufactures, assembles, possesses, or sells any electronic, mechani-
30 cal, or other device with the intention of rendering it primarily useful
31 for the purpose of the illegal interception of wire, electronic or oral
32 communications as specifically defined by this chapter, shall be guilty of
33 a felony and is punishable by imprisonment in the state penitentiary for a
34 term of five (5) years or by a fine of five thousand dollars ($5,000), or
35 by both such fine and imprisonment.
36 (2) It is lawful under this section for:
37 (a) A provider of wire or electronic communication common carrier service
38 or an officer, agent, or employee of, or a person under contract with, a
39 communication common carrier such a provider, in the normal course of the
40 communication common carrier's business; or
41 (b) An officer, agent, or employee of, or a person under contract with,
42 bidding upon contracts with, or in the course of doing business with, the
43 United States, a state, or a political subdivision thereof, in the normal
44 course of the activities of the United States, a state, or a political
45 subdivision thereof, to send through the mail, send or carry in inter-
46 state or foreign commerce, or manufacture, assemble, possess, or sell any
47 electronic, mechanical, or other device, knowing or having reason to know
48 that the design of such device renders it primarily useful for the purpose
49 of the surreptitious interception of wire, electronic or oral communica-
50 tion.
51 (3) It shall not be unlawful under this section to advertise for sale a
52 device described in subsection (1) of this section if the advertisement is
53 mailed, sent or carried solely to a domestic provider of wire or electronic
7
1 communication service or to an agency of the United States, any state, or a
2 political subdivision thereof that is duly authorized to use such device.
3 SECTION 4. That Section 18-6704, Idaho Code, be, and the same is hereby
4 amended to read as follows:
5 18-6704. CONFISCATION OF WIRE, ELECTRONIC OR ORAL COMMUNICATION INTER-
6 CEPTING DEVICES. Any electronic, mechanical, or other device used, sent, car-
7 ried, manufactured, assembled, possessed, or sold in violation of this chapter
8 may be seized and forfeited to the state.
9 SECTION 5. That Section 18-6705, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 18-6705. PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED WIRE, ELECTRONIC
12 OR ORAL COMMUNICATIONS. Whenever any wire, electronic or oral communications
13 has been intercepted, no part of the contents of such communication and no
14 evidence derived therefrom may be received in evidence in any trial, hearing,
15 or other proceeding in or before any court, grand jury, department, officer,
16 agency, regulatory body, legislative committee, or other authority of the
17 state, or a political subdivision thereof, if the disclosure of that informa-
18 tion would be in violation of this chapter.
19 SECTION 6. That Section 18-6706, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 18-6706. AUTHORIZATION FOR INTERCEPTION OF WIRE, ELECTRONIC OR ORAL COM-
22 MUNICATIONS. The prosecuting attorney of any county is authorized to make
23 application to a judge of competent jurisdiction for an order authorizing or
24 approving the interception of wire, electronic or oral communications and may
25 apply to such judge for, and such judge may grant in conformity with section
26 2581 of chapter 119, title 18 U.S.C.A., and in conformity with the provisions
27 of this chapter 67, title 18, Idaho Code, an order authorizing or approving
28 the interception of wire, electronic or oral communications by investigative
29 or law enforcement officers having responsibility for the investigation of the
30 offense as to which the application is made, when such interception may pro-
31 vide or has provided evidence of the commission of the offense of murder, kid-
32 napping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs,
33 marijuana or other dangerous drugs, or other crime dangerous to life, limb, or
34 property, and punishable by imprisonment for more than one (1) year, or any
35 conspiracy to commit any of the foregoing offenses.
36 SECTION 7. That Section 18-6707, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 18-6707. AUTHORIZATION FOR DISCLOSURE AND USE OF INTERCEPTED WIRE, ELEC-
39 TRONIC OR ORAL COMMUNICATIONS. (1) Any investigative or law enforcement offi-
40 cer who, by any means authorized by this chapter, has obtained knowledge of
41 the contents of any wire, electronic or oral communication, or evidence
42 derived therefrom, may disclose such contents to another investigative or law
43 enforcement officer to the extent that such disclosure is appropriate to the
44 proper performance of the official duties of the officer making or receiving
45 the disclosure.
46 (2) Any investigative or law enforcement officer who, by any means autho-
47 rized by this chapter, has obtained knowledge of the contents of any wire,
8
1 electronic or oral communication or evidence derived therefrom may use such
2 contents to the extent such use is appropriate to the proper performance of
3 his official duties.
4 (3) Any person who has received, by any means authorized by this chapter,
5 any information concerning a wire, electronic or oral communication, or evi-
6 dence derived therefrom intercepted in accordance with the provisions of this
7 chapter may disclose the contents of that communication or such derivative
8 evidence while giving testimony under oath or affirmation in any criminal pro-
9 ceeding in any court of this state, of the United States or of any state or in
10 any political subdivision thereof.
11 (4) No otherwise privileged wire, electronic or oral communication inter-
12 cepted in accordance with, or in violation of, the provisions of this chapter
13 shall lose its privileged character.
14 (5) When an investigative or law enforcement officer, while engaged in
15 intercepting wire, electronic or oral communications in the manner authorized
16 herein, intercepts wire, electronic or oral communications relating to
17 offenses other than those specified in the order of authorization, the con-
18 tents thereof, and evidence derived therefrom, may be disclosed or used as
19 provided in subsections (1), (2) and (3) of this section.
20 SECTION 8. That Section 18-6708, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 18-6708. PROCEDURE FOR INTERCEPTION OF WIRE, ELECTRONIC OR ORAL COMMUNI-
23 CATIONS. (1) Each application for an order authorizing the interception of a
24 wire, electronic or oral communication shall be made in writing upon oath or
25 affirmation or by means of an oral affidavit as provided for in the Idaho
26 Rules of Criminal Practice & Procedure to a judge of competent jurisdiction
27 and shall state the applicant's authority to make such application. Each
28 application shall include the following information:
29 (a) The identity of the individual authorized to make application for
30 said order pursuant to section 18-6706(1), Idaho Code.;
31 (b) A full and complete statement of the facts and circumstances relied
32 upon by the applicant, to justify his belief that an order should be
33 issued including (i) details as to the particular offense that has been,
34 is being, or is about to be committed, (ii) except as provided in subsec-
35 tion (11) of this section, a particular description of the nature and
36 location of the facilities from which or the place where the communication
37 is to be intercepted, (iii) a particular description of the type of commu-
38 nications sought to be intercepted, (iv) the identity of the person, if
39 known, committing the offense and whose communications are to be inter-
40 cepted;
41 (c) A full and complete statement as to whether or not other investiga-
42 tive procedures have been tried and failed or why they reasonably appear
43 to be unlikely to succeed if tried or to be too dangerous;
44 (d) A statement of the period of time for which the interception is
45 required to be maintained. If the nature of the investigation is such that
46 the authorization for interception should not automatically terminate when
47 the described type of communication has been first obtained, a particular
48 description of facts establishing probable cause to believe that addi-
49 tional communications of the same type will occur thereafter;
50 (e) A full and complete statement of the facts concerning all previous
51 applications known to the individual making the applications, made to any
52 judge for authorization to intercept wire, electronic or oral communica-
53 tions involving any of the same persons, facilities or places specified in
9
1 the application, and the action taken by the judge on each such applica-
2 tion; and
3 (f) Where the application is for the extension of an order, a statement
4 setting forth the results thus far obtained from the interception, or a
5 reasonable explanation of the failure to obtain such results.
6 (2) The judge may require the applicant to furnish additional testimony
7 or documentary evidence in support of the application.
8 (3) Upon such application the judge may enter an ex parte order, as
9 requested or as modified, authorizing interception of wire, electronic or oral
10 communications within the territorial jurisdiction of the court in which the
11 judge is sitting state of Idaho if the judge determines on the basis of the
12 facts submitted by the applicant that:
13 (a) There is probable cause for belief that an individual is committing,
14 has committed, or is about to commit a particular offense enumerated in
15 section 18-6706, Idaho Code;
16 (b) There is probable cause for belief that particular communications
17 concerning that offense will be obtained through such interception;
18 (c) Normal investigative procedures have been tried and have failed or
19 reasonably appear to be unlikely to succeed if tried or to be too danger-
20 ous;
21 (d) Except as provided in subsection (11) of this section, tThere is
22 probable cause for belief that the facilities from which, or the place
23 where, the wire, electronic or oral communications are to be intercepted
24 are being used, or are about to be used, in connection with the commission
25 of such offense, or are leased to, listed in the name of, or commonly used
26 by such person.
27 (4) Each order authorizing the interception of any wire, electronic or
28 oral communication shall specify:
29 (a) The identity of the person, if known, whose communications are to be
30 intercepted;
31 (b) The nature and location of the communications facilities as to which,
32 or the place where, authority to intercept is granted;
33 (c) A particular description of the type of communication sought to be
34 intercepted, and a statement of the particular offense to which it
35 relates;
36 (d) The identity of the agency authorized to intercept the communica-
37 tions, and of the person making the application; and
38 (e) The period of time during which such interception is authorized,
39 including a statement as to whether or not the interception shall automat-
40 ically terminate when the described communication has been first
41 obtained.
42 (5) An order authorizing the interception of a wire, electronic or oral
43 communication shall, upon request of the applicant, direct that a communica-
44 tions common carrier provider of wire or electronic communication service,
45 landlord, custodian, or other person shall furnish the applicant forthwith all
46 information, facilities and technical assistance necessary to accomplish the
47 interception unobtrusively and with a minimum of interference with the ser-
48 vices that such communications common carrier service provider, landlord, cus-
49 todian or person is providing the person whose communications are to be inter-
50 cepted. Any communications common carrier provider of wire or electronic com-
51 munication service, landlord, custodian or other person furnishing such facil-
52 ities or technical assistance shall be compensated therefor by the applicant
53 at the prevailing rates for reasonable expenses incurred in providing such
54 facilities or assistance.
55 (6) No order entered under this section may authorize the interception of
10
1 any wire, electronic or oral communication for any period longer than is nec-
2 essary to achieve the objective of the authorization, nor in any event longer
3 than thirty (30) days. Such thirty (30) day period begins on the earlier of
4 the day on which the investigative or law enforcement officer begins to con-
5 duct an interception under the order or ten (10) days after the order is
6 entered. Extensions of an order may be granted, but only upon application for
7 an extension made in accordance with subsection (1) of this section and the
8 court making the findings required by subsection (3) of this section. The
9 periods of extension shall be no longer than the authorizing court deems nec-
10 essary to achieve the purposes for which it was granted and in no event for
11 longer than thirty (30) days for each extension. Every order and extension
12 thereof shall contain a provision that the authorization to intercept shall be
13 executed as soon as practicable, shall be conducted in such a way as to mini-
14 mize the interception of communications not otherwise subject to interception
15 under this chapter, and must terminate upon attainment of the authorized
16 objective, or in any event in thirty (30) days. In the event the intercepted
17 communication is in a code or foreign language and an expert in that foreign
18 language or code is not reasonably available during the interception period,
19 minimization may be accomplished as soon as practicable after such intercep-
20 tion. An interception under this chapter may be conducted in whole or in part
21 by government personnel or by an individual operating under a contract with
22 federal, state or local government and acting under the supervision of an
23 investigative or law enforcement officer authorized to conduct the intercep-
24 tion.
25 (7) Whenever an order authorizing interception is entered pursuant to
26 this chapter, the order may require reports to be made to the judge who issued
27 the order showing what progress has been made toward achievement of the autho-
28 rized objective and the need for continued interception. Such reports shall be
29 made at such intervals as the judge who may require.
30 (8) (a) The contents of any wire, electronic or oral communication inter-
31 cepted by any means authorized by this chapter shall, if possible, be
32 recorded on tape or wire or other comparable device. The recording of the
33 contents of any wire, electronic or oral communication under this subsec-
34 tion shall be done in such way as will protect the recording from editing
35 or other alterations. Immediately upon the expiration of the period of the
36 order, or extensions thereof, such recordings shall be made available to
37 the judge issuing such order and sealed under his directions. Custody of
38 the recordings shall be wherever the judge orders. They shall not be
39 destroyed except upon an order of the issuing or denying court and in any
40 event shall be kept for ten (10) years. Duplicate recordings may be made
41 for use or disclosure pursuant to the provisions of subsections (1) and
42 (2) of section 18-6707, Idaho Code, for investigations. The presence of
43 the seal provided for by this subsection, or a satisfactory explanation
44 for the absence thereof, shall be a prerequisite for the use or disclosure
45 of the contents of any wire, electronic or oral communication or evidence
46 derived therefrom under subsection (3) of section 18-6707, Idaho Code.
47 (b) Applications made and orders granted under this chapter shall be
48 sealed by the judge. Custody of the applications and orders shall be wher-
49 ever the judge directs. Such applications and orders shall be disclosed
50 only upon a showing of good cause before a judge of competent jurisdiction
51 and shall not be destroyed except on order of the issuing or denying judge
52 and in any event shall be kept for ten (10) years.
53 (c) Any violation of the provisions of this subsection may be punished as
54 contempt of the issuing or denying judge.
55 (d) Within a reasonable time but not later than ninety (90) days after
11
1 the filing of an application for an order of approval under this section
2 18-6708, Idaho Code, which is denied or the termination of the period of
3 an order or extensions thereof, the issuing or denying judge shall cause
4 to be served, on the persons named in the order or the application, and
5 such other parties to intercepted communications as the judge may deter-
6 mine in his discretion that is in the interest of justice, an inventory
7 which shall include notice of:
8 (1) The fact of the entry of the order or the application;
9 (2) The date of the entry and the period of authorized, approved or
10 disapproved interception, or the denial of the application; and
11 (3) The fact that during the period wire, electronic or oral commu-
12 nications were or were not intercepted.
13 The judge, upon the filing of a motion, may in his discretion make available
14 to such person or his counsel for inspection such portions of the intercepted
15 communications, applications and orders as the judge determines to be in the
16 interest of justice. On an ex parte showing of good cause to a judge of compe-
17 tent jurisdiction the serving of the inventory required by this subsection may
18 be postponed.
19 (9) The contents of any intercepted wire, electronic or oral communica-
20 tion or evidence derived therefrom shall not be received in evidence or other-
21 wise disclosed in any trial, hearing, or other proceeding in a federal or
22 state court unless each party, not less than ten (10) days before the trial,
23 hearing, or proceeding has been furnished with a copy of the court order and
24 accompanying application under which the interception was authorized. This ten
25 (10) day period may be waived by the court if it finds that it was not possi-
26 ble to furnish the party with the above information ten (10) days before the
27 trial, hearing, or proceeding and that the party will not be prejudiced by the
28 delay in receiving such information.
29 (10) (a) Any aggrieved person in any trial, hearing, or proceeding in or
30 before any court, department, officer, agency, regulatory body, or other
31 authority of the United States, a state, or a political subdivision
32 thereof, may move to suppress the contents of any intercepted wire, elec-
33 tronic or oral communication, or evidence derived therefrom, on the
34 grounds that:
35 1. The communication was unlawfully intercepted;
36 2. The order of authorization under which it was intercepted is
37 insufficient on its face; or
38 3. The interception was not made in conformity with the order of
39 authorization.
40 Such motion shall be made before the trial, hearing, or proceeding, pursu-
41 ant to the Idaho rules of criminal or civil procedure or the hearing rules
42 of the respective body, as applicable.
43 (b) In addition to any other right to appeal, the state of Idaho shall
44 have the right to appeal from an order granting a motion to suppress made
45 under paragraph (a) of this subsection. Such appeal shall be taken within
46 thirty (30) days after the date the order was entered.
47 (c) The remedies and sanctions described in this section with respect to
48 the interception of electronic communications are the only judicial reme-
49 dies and sanctions for nonconstitutional violations of this chapter
50 involving such communications.
51 (11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section
52 relating to the specification of the facilities from which, or the place
53 where, the communication is to be intercepted do not apply if:
54 (a) In the case of an application with respect to the interception of an
55 oral communication:
12
1 (i) The application contains a full and complete statement as to
2 why such specification is not practical and identifies the person
3 committing the offense and whose communications are to be inter-
4 cepted; and
5 (ii) The judge finds that such specification is not practical; and
6 (b) In the case of an application with respect to a wire or electronic
7 communication:
8 (i) The application identifies the person believed to be committing
9 the offense and whose communications are to be intercepted and the
10 applicant makes a showing that there is probable cause to believe
11 that the person's actions could have the effect of thwarting inter-
12 ception from a specified facility;
13 (ii) The judge finds that such showing has been adequately made; and
14 (iii) The order authorizing or approving the interception is limited
15 to interception only for such time as it is reasonable to presume
16 that the person identified in the application is or was reasonably
17 proximate to the instrument through which such communication will be
18 or was transmitted.
19 (12) An interception of a communication under an order with respect to
20 which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do
21 not apply by reason of subsection (11)(a) of this section shall not begin
22 until the place where the communication is to be intercepted is ascertained by
23 the person implementing the interception order. A provider of wire or elec-
24 tronic communications service that has received an order as provided for in
25 subsection (11)(b) of this section may move the court to modify or quash the
26 order on the ground that its assistance with respect to the interception can-
27 not be performed in a timely or reasonable fashion. The court, upon notice to
28 the state, shall decide such a motion expeditiously.
29 SECTION 9. That Section 18-6709, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 18-6709. RECOVERY OF CIVIL DAMAGES AUTHORIZED. Any person whose wire,
32 electronic or oral communication is intercepted, disclosed, or used in viola-
33 tion of this chapter shall have a civil cause of action against any person who
34 intercepts, discloses, uses, or procures any other person to intercept, dis-
35 close, or use such communications, and shall be entitled to recover from any
36 such person:
37 (a) Actual damages, but not less than liquidated damages computed at the
38 rate of one hundred dollars ($100) a day for each day of violation or one
39 thousand dollars ($1,000), whichever is higher;
40 (b) Punitive damages; and
41 (c) A reasonable attorney's fee and other litigation costs reasonably
42 incurred.
43 A good faith reliance on a court order shall constitute a complete defense to
44 any civil or criminal action under the laws of this state.
STATEMENT OF PURPOSE
RS 11823
This legislation would update Idaho’s statutes relating to
communications security. Idaho’s statutes in this area were adopted
in 1980 and are based upon federal statutes that control the subject
of communications security. Several changes in the federal statutes
have been enacted since 1980; Idaho’s statutes have not been amended
to reflect these changes. This legislation would, in keeping with
federal statutes, provide an amended definition of wire
communications. It would define electronic communications, and
provide that the unlawful interception of electronic communications
is a felony. It would make it a felony to disclose information
obtained through a lawful interception, where the disclosure is made
with the intent of obstructing an investigation. It would clarify
when the 30-day period for conducting a lawful interception commences.
It would provide that lawfully intercepted communications in a foreign
language or in code could be recorded and preserved until an expert can
translate or decipher them. It would also provide that a court can order
the interception of the communications of a particular suspect without
specifying the place of interception, where, in the case of oral
communications, the court finds that such specification is not practical,
and where, in the case of wire communications, the court finds that the
suspect is acting to thwart the interceptions from a particular location.
FISCAL IMPACT
There is no fiscal impact to the general fund.
CONTACTS:
Name: Steve Tobiason, Deputy Attorney General
Agency: Office of The Attorney General
Phone: 334-4151
Statement of Purpose/Fiscal Impact S 1349