An Act Regarding Service of Criminal Process on Electronic Communication Service Providers and Remote Computing Service Providers
Maine Legislature, Session 128, LD 0332
Committee: Criminal Justice and Public Safety
Amends: 5 MRSA §113, 15 MRSA §55, 15 MRSA §56, 16 MRSA §642, 16 MRSA §648

Legislative Document
No. 332
H.P. 246
House of Representatives, January 31, 2017
An Act Regarding Service of Criminal Process on Electronic 
Communication Service Providers and Remote Computing Service 
Providers
(EMERGENCY)
Reported by Representative WARREN of Hallowell for the Criminal Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 17-A, section 1354, subsection 2.
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed pursuant to Joint Rule 218.
ROBERT B. HUNT
Clerk
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, the business of electronic communication service providers and remote 
computing service providers is growing rapidly and their involvement with the criminal 
justice system is increasing; and 
Whereas, for the purposes of the timely administration of criminal justice in this 
State, amendments to current law are needed immediately to explicitly provide a 
procedure for the service of criminal process on foreign and domestic entities that are 
providers of electronic communication service and providers of remote computing 
service; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  5 MRSA §113, sub-§6 is enacted to read: 
6.  Service of criminal process on providers of electronic communication service 
or providers of remote computing service.  A clerk or registered agent of a provider is 
an agent of the provider authorized to receive service of a grand jury subpoena or a search 
warrant required or permitted by law to be served on the entity. Service of criminal 
process must be accomplished as provided in this subsection. 
A.  As used in this subsection, unless the context otherwise indicates, the following 
terms have the following meanings. 
(1)  "Criminal process" means a grand jury subpoena or search warrant issued 
pursuant to this section, Title 15, section 55 or 56 or Rule 17 or 17A of the Maine 
Rules of Unified Criminal Procedure. 
(2)  "Electronic communication service" means a service that provides to users 
the ability to send or receive spoken, wire or electronic communications. 
(3)  "Electronic communication service provider" or "provider of electronic 
communication service" means an entity that provides electronic communication 
service to the general public. 
(4)  "Provider" means an electronic communication service provider or a remote 
computing service provider. 
(5)  "Remote computing service" means computing storage or processing services 
provided by means of an electronic communication service. 
(6)  "Remote computing service provider" or "provider of remote computing 
service" means an entity that provides remote computing service to the general 
public. 
(7)  "Service of criminal process" means any service of a grand jury subpoena or 
search warrant. 
B.  The authority granted in this subsection applies to criminal process served 
pursuant to Title 15, section 55 or 56, Rule 17 or 17A of the Maine Rules of Unified 
Criminal Procedure or any other provision of state or federal law upon a provider in 
accordance with paragraph C. 
C.  For purposes of this subsection, criminal process is properly served if it is: 
(1)  Delivered by hand, or in a manner reasonably allowing for proof of delivery 
if delivered by United States mail, overnight delivery service or facsimile to a 
commercial clerk or commercial registered agent as provided in section 106; 
section 107, subsection 4; or this section; 
(2)  Delivered by specific means identified by the provider for service of criminal 
process, including, but not limited to, e-mail, facsimile or submission via an 
Internet web portal; or 
(3)  Delivered to the provider's place of business within the State. 
D.  Service of criminal process pursuant to this section governs party and nonparty 
recipients. 
Sec. 2.  15 MRSA §55, as amended by PL 1995, c. 388, §3 and affected by §8, is 
further amended to read: 
§55.  Search warrants; issuance by justice, judge or justice of the peace 
A justice of the Superior Court, a judge of the District Court or a justice of the peace 
shall issue search warrants for any place in the State for such purposes as the Constitution 
of the United States and the Constitution of Maine permit, including with respect to any 
violation over which the Passamaquoddy Tribe or, the Penobscot Nation or the Houlton 
Band of Maliseet Indians exercises exclusive jurisdiction under Title 30, section 6209-A 
or, 6209-B or 6209-C.  The evidence presented to the magistrate in support of the search 
warrant may consist of affidavits and other evidence under oath or affirmation that is 
capable of being reduced to a record for purposes of review.  The Supreme Judicial Court 
shall by rule provide the procedure of the application for and issuance of search warrants; 
provided that, when. When no procedure is specified by the Supreme Judicial Court, the 
justice, judge or justice of the peace shall proceed in any reasonable manner that will 
allow the issuance of a search warrant for any constitutional purpose.  A justice, a judge 
or a justice of the peace shall issue a search warrant for a domestic or foreign entity that is 
a provider of electronic communication service or a provider of remote computing service 
in accordance with the provisions of this section and section 56. 
Sec. 3.  15 MRSA §56 is enacted to read: 
§56.  Service of criminal process on providers of electronic communication service 
or providers of remote computing service 
The following provisions apply to a service of criminal process on an electronic 
communication service provider and a remote computing service provider that are 
domestic or foreign entities. 
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following words have the following meanings. 
A.  "Adverse result" means: 
(1)  Immediate danger of death or serious physical injury; 
(2)  Flight from prosecution; 
(3)  Destruction of or tampering with evidence; 
(4)  Intimidation of a potential witness; 
(5)  Potentially jeopardizing an investigation; 
(6)  Undue delay of a trial; or 
(7) Other significantly detrimental consequence. 
B.  "Applicant" means a law enforcement officer who has applied for or received a 
search warrant pursuant to section 55 or this section. 
C.  "Content information," when used with respect to any wire or electronic 
communication, includes any information concerning the substance, purport or 
meaning of that communication. 
D.  "Court" means the Superior Court or the District Court. 
E.  "Criminal process" means a search warrant issued pursuant to Title 5, section 113; 
section 55; or this section, or a grand jury subpoena issued pursuant to Rule 17 or 
17A of the Maine Rules of Unified Criminal Procedure and this section. 
F.  "Domestic entity" means an entity whose internal affairs are governed by the laws 
of this State. 
G.  "Electronic communication service" means a service that provides to users the 
ability to send or receive spoken, wire or electronic communications. 
H.  "Electronic communication service provider" means an entity that provides 
electronic communication service to the general public. 
I.  "Entity" means an entity as defined in Title 5, section 102, subsection 7. 
J.  "Foreign entity" means an entity other than a domestic entity. 
K.  "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. 
L.  "Properly served" means that a search warrant or grand jury subpoena has been: 
(1)  Delivered by hand, or in a manner reasonably allowing for proof of delivery 
if delivered by United States mail, overnight delivery service or facsimile to a 
commercial clerk or commercial registered agent as provided in Title 5, section 
106; Title 5, section 107, subsection 4; or this section; 
(2)  Delivered by specific means identified by the provider for service of criminal 
process, including, but not limited to, e-mail, facsimile or submission via an 
Internet web portal; or 
(3)  Delivered to the provider's place of business within the State. 
M.  "Provider" means an electronic communication service provider or a remote 
computing service provider. 
N.  "Remote computing service" means computing storage or processing services 
provided by means of an electronic communication service. 
O.  "Remote computing service provider" means an entity that provides remote 
computing service to the general public. 
2.  Requirements applicable to a foreign entity.  The following provisions apply to 
criminal process issued pursuant to this section that requires a search for records that are 
in the actual or constructive possession of a foreign entity that provides electronic 
communication service or remote computing service when those records would reveal the 
identity of a customer using services, data stored by or on behalf of a customer, a 
customer's usage of the service, the recipient or destination of communications sent to or 
from a customer, content information or location information. 
A.  A foreign entity served with a search warrant pursuant to this section shall 
provide to the applicant all records sought, including those records maintained or 
located outside this State, within 14 days of service.  A foreign entity served with a 
grand jury subpoena pursuant to this section shall provide to the prosecutor all 
records sought, including those records maintained or located outside this State, by or 
at the time of the grand jury appearance. 
B.  A foreign entity shall verify the authenticity of records that it produces by 
providing an affidavit that complies with the requirements set forth in the Maine 
Rules of Evidence, Rule 902(12). Admissibility of these records in a court in this 
State is governed by the Maine Rules of Evidence, Rule 803(6). 
C.  A foreign entity seeking additional time to respond to the criminal process served 
pursuant to this section must file a request for relief from the court that issued the 
criminal process within the time required for production of records.  The court shall 
hear and decide that request as soon as practicable after receipt of the request. 
D.  A foreign entity that provides records or testifies pursuant to this section is 
immune from criminal or civil liability for the release of the requested information to 
the court, attorney for the State or law enforcement agency involved in an 
investigation. 
3.  Requirements applicable to a domestic entity.  The following provisions apply 
to criminal process issued pursuant to this section that requires a search for records that 
are in the actual or constructive possession of a domestic entity that provides electronic 
communication service or remote computing service when those records would reveal the 
identity of a customer using services, data stored by or on behalf of a customer, a 
customer's usage of the service, the recipient or destination of communications sent to or 
from a customer, content information or location information. 
A.  A domestic entity that provides electronic communication service or remote 
computing service, when served with criminal process issued by another state to 
produce records that would reveal the identity of a customer using services, data 
stored by or on behalf of a customer, a customer's usage of the service, the recipient 
or destination of communications sent to or from a customer, content information or 
location information, shall produce those records as if that criminal process had been 
issued by a court in this State. 
B.  A domestic entity served with a search warrant pursuant to this section shall 
provide to the applicant all records sought, including those records maintained or 
located outside this State, within 14 days of service.  A domestic entity served with a 
grand jury subpoena pursuant to this section shall provide to the prosecutor all 
records sought, including those records maintained or located outside this State, by or 
at the time of the grand jury appearance. 
C.  A domestic entity shall verify the authenticity of records that it produces by 
providing an affidavit that complies with the requirements set forth in the Maine 
Rules of Evidence, Rule 902(11) or on a form provided by the requesting jurisdiction.  
Admissibility of these records in a court in this State is governed by the Maine Rules 
of Evidence, Rule 803(6). 
D.  A domestic entity seeking additional time to respond to the criminal process 
served pursuant to this section must file a request for relief from the court that issued 
the criminal process within the time required for production of records. The issuing 
court shall hear and decide that request as soon as practicable after receipt of the 
request. 
E.  A domestic entity that provides records or testifies pursuant to this section is 
immune from criminal or civil liability for the release of the requested information to 
the court, attorney for the State or law enforcement agency involved in an 
investigation. 
4.  Application for expedited production of records.  An applicant for a search 
warrant that demonstrates that the production of records more than 14 days after issuance 
is reasonably likely to cause an adverse result may request that the court require the 
production of the records in less than 14 days. 
Sec. 4.  16 MRSA §642, sub-§1, as amended by PL 2013, c. 519, §5, is further 
amended to read: 
1.  Authority to obtain.  A government entity may obtain portable electronic device 
content information directly from a provider of electronic communication service or a 
provider of remote computing service only in accordance with a valid search warrant 
issued by a duly authorized justice, judge or justice of the peace using procedures 
established pursuant to Title 15, section 55 or 56 or as otherwise provided in this 
subchapter. 
Sec. 5.  16 MRSA §648, as amended by PL 2013, c. 519, §6, is further amended to 
read: 
§648.  Search warrant needed for acquisition of location information 
Except as provided in this subchapter, a government entity may not obtain location 
information without a valid warrant issued by a duly authorized justice, judge or justice 
of the peace using procedures established pursuant to Title 15, section 55 or 56. 
A justice, judge or justice of the peace may issue a search warrant for the location 
information of an electronic device pursuant to this section for a period of time necessary 
to achieve the objective of the authorization, but in any case the warrant is not valid for 
more than 10 14 days after the issuance. A justice, judge or justice of the peace may grant 
an extension of a warrant upon a finding of continuing probable cause and a finding that 
the extension is necessary to achieve the objective of the authorization. An extension may 
not exceed 30 days. 
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill is emergency legislation.  Consistent with existing Maine and federal law, 
this bill makes explicit that a Maine search warrant or a Maine grand jury subpoena may 
compel production of records by a provider of electronic communication service or 
remote computing service, even if the provider is outside the State, and establishes the 
appropriate procedure for service of such legal process.  Compelling the production of 
records will provide access to service provider records that often are critical to the 
investigation of crime, as criminals commonly use cell phones, computers and the 
Internet in connection with criminal activities.  The federal Stored Communications Act, 
United States Code, Section 2703(a), (b)(1)(A) and (c)(2) already expressly requires 
providers of electronic communication service and remote computing service to comply 
with state grand jury subpoenas for basic subscriber information and state search warrants 
for content information and location information.  Likewise, under Maine law the 
authority to compel production of basic subscriber information with a grand jury 
subpoena already exists under the Maine Rules of Unified Criminal Procedure, Rule 17 
and Rule 17A, and the authority to compel production of content information and location 
information with a search warrant already exists under the Maine Revised Statutes, Title 
16, sections 642 and 648.  This clarification is necessary to resolve uncertainty about the 
court's authority under Title 15, section 55 to issue search warrants for records in the 
possession of entities outside of Maine.  Such uncertainity may impede the investigation 
of crimes in Maine and undermine the federal law that requires providers to comply with 
state search warrants and grand jury subpoenas.  Emergency legislation is necessary to 
immediately clarify the court's authority to review requests for criminal process required 
for the investigation of alleged criminal activity in Maine.