An Act Restricting State Assistance m Federal Collection of Personal Electronic Data and Metadata
Maine Legislature, Session 131, LD 1056
Committee Amendment CA_A_S515 (Senate)
Amends: 15 MRSA §58, 16 MRSA §641, 16 MRSA §642, 16 MRSA §643, 16 MRSA §644, 16 MRSA §645, 16 MRSA §648, 16 MRSA §649

COMMITTEE AMENDMENT " ^ " to S.P. 425, L.D. 1056, "An Act Restricting
State Assistance m Federal Collection of Personal Electronic Data and Metadata "
Amend the bill by striking out the title and substituting the following:
'An Act to Enhance Regulation of the Grand Jury Subpoena Process and Government
Access to Electronic Device Information'
Amend the bill by striking out everything after the enacting clause and inserting the
following:
'PART A
Sec.A-1. 15 MRSA §58 is enacted to read:
§58. Notice of grand jury subpoena
1. Definitions. As used in this section. unless the,context otherwise indicates, the
following terms have the following meanings.
A. "Adverse result" means:
d) Immediate danger of death or serious physical miury to any person;
(2) Flight from prosecution;
C3) Destruction of or tampering with evidence;
('41 Intimidation of a potential witness;
f5) Seriously ieouardizmg an investigation; or
(6) Undue delay of a trial.
B. "Court" means the Superior Court or the District Court.
C. "Grand jury subpoena" means a subpoena issued by a grand jury pursuant to Rule
17 or 17A of the Maine Rules of Unified Criminal_Procedure and pursuant to section
56,
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D. "Subject of the grand jury subpoena" means the person or persons, if reasonablv
identifiable by an attorney for the State, about whom any grand jury witaess testunonv
or documentary evidence or tangible_obiects are _SQUght through a.grand iury subpoena.
"Subject of the grand jury subpoena" does not include the person upon whom the grand
iury subpoena is served.
2._Notice by subpoenaed person. A person served with a grand jury subpoena may
notify any person of the existence of the grand jury subuoena unless a court order
Brohibitmg such action is served with the grand jury subpoena. On aoplicatJQn by an
attorney for the State, a court mav issue an order prohibiting the person served from
notifying any other person of the existence of a grand jury subpoena if the attorney for the
State_demonstrates that there is a reason to believe thatjiotification of the existence of the
grand jury subpoena will have an adverse result.
3. Notice by attorney for the State. An attorney for the State, within one year after
service of a grand jury subpoena, shall notify the subject of the grand jury subuoenaofthe
existence of the subpoena unless:
A. The subject of the grand jury subpoena was indicted either by the grand jury that
issued the subpoena or by anothergrand iury_ to which any evidence produced in
response to the subpoena was presented; or
B. On application by an attorney for the State, a court issues an order waiving the notice
reouu-ed by this subsection. A court may issue an order waivine the notice reguu-ed by
this subsection if the attorney for the State demonstrates that there is a reason to believe
that notifymg the subject of the grand jury subpoena of the existence of the subpoena
will have an adversej-esult.
PART B
Sec. B-l. 16 MRSA c. 3, sub-c. 10, headnote is amended to read:
SUBCHAPTER 10
PORTABLE ELECTRONIC DEVICE CONTENT INFORMATION
Sec. B-2. 16 MRSA §641, sub-§2, as enacted by PL 2013,c.402,§ 1, is repealed.
Sec. B-3. 16 MRSA §641, sub-§3-A is enacted to read:
3-A. Electronic device. "Electronic device" means an electronic device that enables
access to, or use of, an electronic communication service or remote computmg service.
Sec. B-4. 16 MRSA §641, sub-§3-B is enacted to read:
3-B.JElectronic device information. "Electronic device information" means:
A. With respect to any wu-e, oralor electronic communication stored on, generated bv
5 or transmitted from or to the electronic device, any infomiation concemins the
substance, purport ormeaning of that communication as well as information about the
7 sender or a reciuient of the communication, mcludine the location of the sender or a
8 recipient at any point during the communication; the format of the communication; the
time or date the communication was created, sent or received; or any information
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relating to a person or an electronic device participating in the electronic
communication, such as an Internet protocol address; and
B. Any other information stored on, generated by or transmitted through operation of
the electronic device.
"Electronic device information" does not include location information as defined in section
647, subsection 5, except information about the location of a sender or recipient of a wire.
oral or electronic communication.
Sec. B-5. 16 MRSA §641, sub-§5, as enacted by PL 2013,c.402,§ 1, is amended
to read:
5. Owner. Owner" means the person or entity having the legal title, claim or right to
a portable an electronic device.
Sec. B-6. 16 MRSA §641, sub-§6, as amended by PL 2019,c. 489, §5, is repealed.
Sec. B-7. 16 MRSA §641, sub-§7, as enacted by PL 2013,c. 402, §1, is repealed
and the following enacted in its place:
7. Remote computins service. "Remote computing service" means:
A. The provision to the public over the Internet of on-demand computer storage; or
B. Processing services provided by means of an electronic communication service.
Sec. B-8. 16 MRSA §641, sub-§8, as enacted by PL 2013,c. 402, §1, is amended
to read:
8. User. "User" means a person or entity that uses a portable an electronic device.
Sec. B-9. 16 MRSA §642, as amended by PL 2017,c. 144,§4, is farther amended
to read:
§642. Authority to obtain and disclose content electronic device information held by
a provider of electronic communication service or remote computins service
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 m 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.
2. Authority to disclose. A provider of electronic communication service or remote
computing service may disclose portable electronic device ©efiteet information to a
government entity only pursuant to a warrant issued by a duly authorized justice, judge or
justice of the peace or as otherwise provided in this subchapter.
Sec. B-10. 16 MRSA §643, as amended by PL 2019,c.489,§§7 and 8, is further
amended to read:
§643. Notice
Notice must be given to the owner or user of a portable an electronic device whose
8 content electronic device 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 an electronic device.
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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 electronic device information was obtained by the government entity from a
provider of electronic communication service or remote computing service within 3 days
of obtaining the content that 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 electronic device 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. The identity of the provider of electronic communication service or remote
computing service from wfeem which the information was obtained.
2. Notification not required. A government entity acting under section 642 may
include m 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 detennines 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 content electronic
device information. A government entity acting under section 642 may include in its
application for a warrant a request for an order directing a provider of elect-onic
communication service or remote computmg 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. B-ll. 16 MRSA §644, as amended by PL 2019,c.489,§9, is further amended
to read:
§644. Exceptions
1. Consent of owner or user. When disclosure of portable electronic device
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 authorized to possess the device
by the owner or user.
2. Consent of owner or user not required if content electronic device information
public. Notwithstanding subsection 1, a government entity may obtain eeatefit electronic
device information without a warrant if the content electronic device information is
otherwise disclosed by anyone in a publicly accessible domain, including, but not limited
to, on the Internet.
3. Emergency. When a government entity cannot, with due diligence, obtain a warrant
in tune to address an emergency that involves or is believed to involve imminent danger of
death or serious physical injury to any person, a government entity may obtain the
electronic device information from a portable elect-onio devico without a warrant, and a
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provider of electronic communication service or remote computing service may disclose
such information to the requesting government entity without a warrant.
Sec. B-12. 16 MRSA §645, as enacted by PL 2013, c. 402, §1, is amended by
amending the section headnote to read:
§645. Use of content electronic device information obtained in violation of this
subchapter not admissible
Sec. B-13. 16 MRSA §648, first ^, as amended by PL 2017, c. 144, §5, is further
amended to read:
Except as provided in subchapter 10 or 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.
Sec. B-14. 16 MRSA §649, first ^, as reallocated by RR 2013, c. 1, §30, is
amended to read:
Notice must be given to the owner or user of an electronic device whose location
information was obtained by a government entity pursuant to this subchapter. The
government entity's notification obligation applies only if the government entity is able to
identify the owner or user.'
Amend the bill by relettering or renumbering any nonconsecutive Part letter or section
number to read consecutively.
SUMMARY
This amendment, which is the minority report of the committee, strikes and replaces
the bill.
Part A of the amendment clarifies that a person upon whom a grand jury subpoena is
served may notify others of the existence of the subpoena unless a court issues an order
prohibiting notice to any person on the basis that there is a reason to believe such notice
will have an adverse result. It also requires an attorney for the State, within one year after
service of a grand jury subpoena, to notify the subject of the subpoena against whom an
indictment has not been issued of the existence of the subpoena unless a court enters an
order waiving the notice requirement on the basis that there is a reason to believe such
notice will have an adverse result. For purposes of these provisions, the amendment defmes
"adverse result" as immediate danger of death or serious physical injury to any person;
flight from prosecution; destruction of or tampering with evidence; intimidation of a
potential witness; seriously jeopardizing an investigation; or undue delay of a trial.
Part B of the amendment amends the provisions of law that require state and local
government entities to obtam a search warrant, unless certain enumerated circumstances
exist, before accessing information regarding the content of portable electronic device
communications. Part B expands the scope of these laws to apply when state or local
government entities seek to obtain not only infonnation about the content of
communications but also metadata about those communications and any other information
stored on, generated by or transmitted through operation of an electronic device, regardless
of whether it is portable. Part B also clarifies that these provisions of law apply when state
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and local government entities seek to obtain electronic device information stored by remote
computing services that provide Internet storage to the public, commonly referred to as
"cloud storage services."
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