An Act Regarding Portable Electronic Device Content, Location Information and Tracking Devices
Maine Legislature, Session 129, LD 0627
Committee: Judiciary
Amends: 16 MRSA §641, 16 MRSA §643, 16 MRSA §644, 16 MRSA §646-A, 16 MRSA §647, 16 MRSA §648, 16 MRSA §649, 16 MRSA §650, 16 MRSA §650-A

Legislative Document
No. 627
H.P. 455
House of Representatives, February 5, 2019
An Act Regarding Portable Electronic Device Content, Location 
Information and Tracking Devices
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 Judiciary suggested and ordered printed pursuant to Joint 
Rule 218.
ROBERT B. HUNT
Clerk
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  16 MRSA c. 3, sub-c. 9-A is enacted to read:
SUBCHAPTER 9-A
TRACKING DEVICE INFORMATION
§638.  Definitions
As used in this subchapter, unless the context otherwise indicates, the following 
terms have the following meanings.
1.  Adverse result.  "Adverse result" means:
A.  Immediate danger of death or serious physical injury;
B.  Flight from prosecution;
C.  Destruction of or tampering with evidence;
D.  Intimidation of a potential witness;
E.  Potentially jeopardizing an investigation;
F.  Undue delay of a trial; or
G.  Other significantly detrimental consequence.
2.  Law enforcement officer.  "Law enforcement officer" means any person who by 
virtue of public employment is vested by law with a duty to maintain public order, to 
prosecute offenders, to make arrests for crimes, whether that duty extends to all crimes or 
is limited to specific crimes, or to perform probation functions or who is an adult 
probation supervisor. 
3.  Tracking device.  "Tracking device" means an electronic or mechanical device 
that permits the tracking of the movement of a person or object.
§639.  Authority to install and monitor a tracking device
1.  Application.  This subchapter only applies to tracking devices that are placed by 
law enforcement officers.
2.  Installation and monitoring.  A law enforcement officer may install and monitor 
a tracking device 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.
3.  Authorization of use.  A court empowered to issue a search warrant or other 
order for the installation of a tracking device may authorize the use of that device within 
the jurisdiction of the court and outside that jurisdiction if the device is installed within 
the jurisdiction of the court.
4.  Time period.  A justice, judge or justice of the peace may issue a search warrant 
for the installation and monitoring of a tracking device pursuant to this section for a 
period of time necessary to achieve the objective of the authorization, but in any case the 
warrant to install the tracking device is not valid for more than 14 days after issuance.  A 
justice, judge or justice of the peace may grant an extension of the monitoring period for 
up to 30 days upon a finding of continuing probable cause and a finding that the 
extension is necessary to achieve the objective of the authorization.
§640.  Notice
1.  Service of notice.  Unless the court determines under subsection 3 that no notice 
is required, within 14 calendar days after the use of the tracking device has ended, the law 
enforcement officer who executed the warrant shall serve a copy of the warrant on the 
person who was tracked or whose property was tracked.  The time period provided in this 
subsection may be extended for good cause shown.
2.  Means of providing notice.  The notice required under subsection 1 must be 
made by:
A.  Delivering a copy to the person who was tracked or whose property was tracked;
B.  Leaving a copy at the person's residence or usual place of abode with an 
individual of suitable age and discretion who resides at that location; or
C.  Mailing a copy to the person's last known address.
3.  Notification not required.  A law enforcement officer acting pursuant to section 
may include in the application for a warrant a request for an order to waive the 
notification required under this section. The court may issue an order waiving notification 
if the court determines that there is reason to believe that notification will have an adverse 
result.
Sec. 2.  16 MRSA §641, sub-§6, as enacted by PL 2013, c. 402, §1, is amended to 
read:
6.  Portable electronic device.  "Portable electronic device" means a portable device 
that is portable and electric that enables access to, or use of, an electronic communication 
service or remote computing service.
Sec. 3.  16 MRSA §641, sub-§7-A is enacted to read:
7-A.  Serious physical injury.  "Serious physical injury" means:
A.  Bodily injury that creates a substantial risk of death, serious, permanent 
disfigurement or loss or substantial impairment of the function of a bodily member or 
organ or extended convalescence for recovery of physical health; or
B.  Any harm potentially caused by a violation of Title 17-A, chapter 11 or Title 
17-A, section 282, 301, 302 or 303.
Sec. 4.  16 MRSA §643, first ¶, as enacted by PL 2013, c. 402, §1, is amended to 
read:
Notice must be given to the owner or user of a portable electronic device whose 
content information was obtained by a government entity.  The notice requirements of 
this section do not apply if the government entity is unable to identify the owner or user  
of a portable electronic device.
Sec. 5.  16 MRSA §643, sub-§1, as enacted by PL 2013, c. 402, §1, is amended to 
read:
1.  Timing and content of notice.  Unless the court determines under subsection 2 
that no notice is required, the government entity shall provide notice to the owner or user 
that content information was obtained by the government entity from that owner's or 
user's portable electronic device a provider of electronic communication service or 
remote computing service within 3 days of obtaining the content information. The notice 
must be made by service or delivered by registered or first-class mail, e-mail or any other 
means reasonably calculated to be effective as specified by the court issuing the warrant. 
The notice must contain the following information:
A.  The nature of the law enforcement inquiry, with reasonable specificity;
B.  The content information of the owner or user that was supplied to or requested by 
the government entity and the date on which it was provided or requested; and
C.  If content information was obtained from a provider of electronic communication 
service or other 3rd party, the The identity of the provider of electronic 
communication service or the 3rd party remote computing service from whom the 
information was obtained.
Sec. 6.  16 MRSA §644, sub-§§1 and 3, as enacted by PL 2013, c. 402, §1, are 
amended to read:
1.  Consent of owner or user.  When disclosure of portable electronic device content 
information is not prohibited by federal law, a government entity may obtain the 
information without a warrant with the informed, affirmative consent of the owner or user 
of the portable electronic device concerned, except when the device is known or believed 
by the owner or user to be in the possession of a 3rd party known to authorized to use the 
device by the owner or user.
3.  Emergency.  When a government entity cannot, with due diligence, obtain a 
warrant in time to address an emergency that involves or is believed to involve an 
imminent threat to life or safety danger of death or serious physical injury to any person, 
a government entity may obtain the content information from a portable electronic device 
without a warrant, and a provider of electronic communication service or remote 
computing service may disclose such information to the requesting government entity 
without a warrant.
Sec. 7.  16 MRSA §646-A is enacted to read:
§646-A.  Application
This subchapter applies to a government entity obtaining portable electronic device 
content from a provider of electronic communication service or a provider of remote 
computing service.
Sec. 8.  16 MRSA §647, sub-§1, ¶¶E and F, as reallocated by RR 2013, c. 1, 
§28, are amended to read:
E.  Substantially jeopardizes Potentially jeopardizing an investigation; or
F.  Undue delay of a trial.; or
Sec. 9.  16 MRSA §647, sub-§1, ¶G is enacted to read:
G.  Other significantly detrimental consequence.
Sec. 10.  16 MRSA §647, sub-§3, as reallocated by RR 2013, c. 1, §28, is 
amended to read:
3.  Electronic device.  "Electronic device" means a device that is electric and that 
enables access to, or use of, an electronic communication service, remote computing 
service or location information service.
Sec. 11.  16 MRSA §647, sub-§§8-A and 8-B are enacted to read:
8-A.  Serious physical injury.  "Serious physical injury" means:
A.  Bodily injury that creates a substantial risk of death, serious, permanent 
disfigurement or loss or substantial impairment of the function of a bodily member or 
organ or extended convalescence necessary for recovery of physical health; or
B.  Any harm potentially caused by a violation of Title 17-A, chapter 11 or Title 
17-A, section 282, 301, 302 or 303.
8-B.  Tracking device.  "Tracking device" means an electronic or mechanical device 
that permits the tracking of the movement of a person or object.
Sec. 12.  16 MRSA §648, as amended by PL 2017, c. 144, §5, is repealed and the 
following enacted in its place:
§648.  Application; search warrant needed for acquisition of location information
1.  Application.  This subchapter applies to a government entity obtaining location 
information from a provider of electronic communication service, remote computing 
service or location information service.  This subchapter does not apply to tracking 
devices placed by law enforcement officers.
2.  Warrant required.  Except as provided in this subchapter, a government entity 
may not obtain location information from a provider of electronic communication service, 
remote computing service or location information service without 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.
Sec. 13.  16 MRSA §649, as reallocated by RR 2013, c. 1, §30 and amended by PL 
2013, c. 588, Pt. A, §21, is further amended to read:
§649.  Notice
Notice must be given to the owner or user of an electronic device whose location 
information was obtained by a government entity.  The government entity's notification 
obligation applies only if the government entity is able from a provider of electronic 
communication service, remote computing service or location information service.  The 
notice requirements of this section do not apply if the government entity is unable to 
identify the owner or user.
1.  Timing and content of notice.  Unless the court determines under subsection 2 
that no notice is required, the government entity shall provide notice to the owner or user 
that location information was obtained by the government entity from that owner's or 
user's electronic device a provider of electronic communication service, remote 
computing service or location information service within 3 days of obtaining the location 
information.  The notice must be made by service or delivered by registered or first-class 
mail, e-mail or any other means reasonably calculated to be effective as specified by the 
court issuing the warrant.  The notice must contain the following information:
A.  The nature of the law enforcement inquiry, with reasonable specificity;
B.  The location information of the owner or user that was supplied to or requested by 
the government entity and the date on which it was provided or requested; and
C.  If location information was obtained from a provider of electronic communication 
service or location information service or other 3rd party, the The identity of the 
provider of electronic communication service, remote computing service or location 
information service or the 3rd party from whom the information was obtained.
2.  Notification not required.  A government entity acting under section 648 may 
include in the application for a warrant a request for an order to waive the notification 
required under this section.  The court may issue the order if the court determines that 
there is reason to believe that notification will have an adverse result.
3.  Preclusion of notice to owner or user subject to warrant for location 
information.  A government entity acting under section 648 may include in its 
application for a warrant a request for an order directing a provider of electronic 
communication service, remote computing service or location information service to 
which a warrant is directed not to notify any other person of the existence of the warrant.  
The court may issue the order if the court determines that there is reason to believe that 
notification of the existence of the warrant will have an adverse result.
Sec. 14.  16 MRSA §650, sub-§§2 and 4, as reallocated by RR 2013, c. 1, §31, 
are amended to read:
2.  Consent of owner or user.  With the informed, affirmative consent of the owner 
or user of the electronic device concerned, except when the device is known or believed 
by the owner or user to be in the possession of a 3rd party known to authorized to use the 
device by the owner or user;
4.  Danger of death or serious injury.  If the government entity reasonably believes 
that an emergency involving immediate danger of death or serious physical injury to a 
person requires the disclosure, without delay, of location information concerning a 
specific person and that a warrant cannot be obtained in time to prevent the identified 
danger, and the possessor of the location information, in good faith, believes that an 
emergency involving danger of death or serious physical injury to a person requires the 
disclosure without delay.
Within a reasonable period of time after seeking disclosure pursuant to this subsection, 
the government entity seeking the location information shall file with the appropriate 
court a written statement setting forth the facts giving rise to the emergency and the facts 
as to why the person whose location information was sought is believed to be important 
in addressing the emergency.
Sec. 15.  16 MRSA §650-A, sub-§1, as reallocated by RR 2013, c. 1, §32, is 
amended to read:
1.  Conditions of use of location information in proceeding.  Location information 
obtained pursuant to this subchapter or evidence derived from that information may be 
received in evidence or otherwise disclosed in a trial, hearing or other proceeding only if 
each party, not less than 10 days before the trial, hearing or proceeding, has been 
furnished with a copy of the statement of emergency filed under section 650, subsection 4 
or the warrant and accompanying application under which the information was obtained.
SUMMARY
This bill sets forth procedures to govern the installation and monitoring of tracking 
devices by law enforcement officers.  It amends the definition of "portable electronic 
device" to clarify that the device is electric and defines "tracking device."  The bill also 
establishes parallel terms and procedures in the laws governing portable electronic device 
content information, electronic device location information and tracking information, 
including parallel definitions of "adverse result" and "serious physical injury."  It 
provides an exception to the requirement that notice be given to the owner or user if the 
government entity is unable to identify the owner or user.