2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 16F - Electronic Communications Privacy › Section 10-16F-3 - Government entity; proscribed acts; permitted acts; warrants; information retention; emergency.

A. Except as otherwise provided in this section, a government entity shall not:
(1) compel or incentivize the production of or access to electronic communication information from a service provider;
(2) compel the production of or access to electronic device information from a person other than the device's authorized possessor; or
(3) access electronic device information by means of physical interaction or electronic communication with the electronic device.
B. A government entity may compel the production of or access to electronic communication information from a service provider or compel the production of or access to electronic device information from a person other than the authorized possessor of the device only if the production or access is made under a:
(1) warrant that complies with the requirements in Subsection D of this section; or
(2) wiretap order.
C. A government entity may access electronic device information by means of physical interaction or electronic communication with the device only if that access is made:
(1) under a warrant that complies with the requirements in Subsection D of this section;
(2) under a wiretap order;
(3) with the specific consent of the device's authorized possessor;
(4) with the specific consent of the device's owner if the device has been reported as lost or stolen;
(5) because the government entity believes in good faith that the device is lost, stolen or abandoned, in which case, the government entity may access that information only as necessary and for the purpose of attempting to identify, verify or contact the device's authorized possessor; or
(6) because the government entity believes in good faith that an emergency involving danger of death or serious physical injury to a natural person requires access to the electronic device information.
D. A warrant for the search and seizure of electronic information shall:
(1) describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the natural persons or accounts targeted, the applications or services covered and the types of information sought;
(2) require that information obtained through the execution of the warrant that is unrelated to the objective of the warrant or is not exculpatory to the target of the warrant shall be sealed and shall not be subject to further review, use or disclosure except pursuant to a court order or to comply with discovery as required. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law; and
(3) comply with all New Mexico and federal laws, including laws prohibiting, limiting or imposing additional requirements on the use of search warrants.
E. When issuing a warrant or order for electronic information or upon a petition of the target or recipient of the warrant or order, a court may appoint a special master charged with ensuring that only the information necessary to achieve the objective of the warrant or order is produced or accessed.
F. A service provider may voluntarily disclose electronic communication information or subscriber information if the law otherwise permits that disclosure.
G. Information obtained through the execution of a warrant or order that is unrelated to the objective of the warrant shall be destroyed as soon as feasible after the termination of the current investigation and related investigations or proceedings.
H. If a government entity receives electronic communication information as provided in Subsection F of this section, the government entity shall seal that information, which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required, within ninety days after the disclosure unless the government entity:
(1) has or obtains the specific consent of the sender or recipient of the electronic communication about which information was disclosed; or
(2) obtains a court order under Subsection I of this section.
I. A court may issue an order authorizing the retention of electronic communication information:
(1) only upon a finding that the conditions justifying the initial voluntary disclosure persist; and
(2) lasting only for the time those conditions persist or there is probable cause to believe that the information constitutes criminal evidence.
J. Information retained as provided in Subsection I of this section shall be shared only with a person that agrees to limit the person's use of the information to the purposes identified in the court order and that:
(1) is legally obligated to destroy the information upon the expiration or rescindment of the court order; or
(2) voluntarily agrees to destroy the information upon the expiration or rescindment of the court order.
K. If a government entity obtains electronic information because of an emergency that involves danger of death or serious physical injury to a natural person and that requires access to the electronic information without delay, the government entity shall file with the appropriate court within three days after obtaining the electronic information:
(1) an application for a warrant or order authorizing the production of electronic information and, if applicable, a request supported by a sworn affidavit for an order delaying notification as provided in Subsection B of Section 10-16F-4 NMSA 1978; or
(2) a motion seeking approval of the emergency disclosures that sets forth the facts giving rise to the emergency and, if applicable, a request supported by a sworn affidavit for an order delaying notification as provided in Subsection B of Section 10-16F-4 NMSA 1978.
L. A court that receives an application or motion as provided in Subsection K of this section shall promptly rule on the application or motion. If the court finds that the facts did not give rise to an emergency or if the court rejects the application for a warrant or order on any other ground, the court shall order:
(1) the immediate sealing of all information obtained, which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required; and
(2) the immediate notification provided in Subsection A of Section 10-16F-4 NMSA 1978 if that notice has not already been given.
M. This section does not limit the authority of a government entity to use an administrative, grand jury, trial or civil discovery subpoena to require:
(1) an originator, addressee or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication;
(2) when a person that provides electronic communications services to its officers, directors, employees or agents for those officers, directors, employees or agents to carry out their duties, the person to disclose the electronic communication information associated with an electronic communication to or from the officer, director, employee or agent; or
(3) a service provider to provide subscriber information.
N. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
O. Nothing in this section shall be construed to expand any authority under New Mexico law to compel the production of or access to electronic information.
P. This section shall not be construed to alter the authority of a government entity that owns an electronic device to compel an employee who is authorized to possess the device to return the device to the government entity's possession.
History:
Laws 2019, ch. 39, § 3; 2020, ch. 41, § 1.
ANNOTATIONS
The 2020 amendment,
effective March 4, 2020, placed additional requirements on government entities when obtaining warrants for the search and seizure of electronic information, and clarified that government entities have the authority to require an employee to return any electronic device owned by the government entity; in Subsection D, deleted the language in Paragraph D(2), which related to the destruction of information obtained through the execution of a search warrant and that is unrelated to the objective of the search warrant, and rewrote the paragraph; added a new Subsection G and redesignated former Subsections G through N as Subsections H through O, respectively; in Subsection H, in the introductory clause, after "entity shall", deleted "destroy" and added "seal", and after "that information", added "which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required", and in Paragraph H(2), after "Subsection", deleted "H" and added "I"; in Subjection J, in the introductory clause, after "Subsection", deleted "H" and added "I"; in Subsection K, Paragraphs K(1) and K(2), changed "Section 4 of the Electronic Communications Privacy Act" to "10-16F-4 NMSA 1978"; in Subsection L, Paragraph L(1), after "immediate", deleted "destruction" and added "sealing", and after "information obtained", added "which shall not be subject to further review, use or disclosure except pursuant to a court order upon a finding that there is probable cause to believe that the information is relevant to an active investigation or review, use or disclosure is required by state or federal law or to comply with discovery as required", and in Paragraph L(2), after "Section", deleted "4 of the Electronic Communications Privacy Act" and added "10-16F-4 NMSA 1978"; and added Subsection P.
The Electronic Communications Privacy Act is not an exception to disclosure of public records through the Inspection of Public Records Act.
— Where the state ethics commission (commission) sent a public records request to the New Mexico human services department [health care authority department] (department), asking the department to provide copies of certain emails from several named employees, and where the department denied the request claiming that the Electronic Communications Privacy Act (ECPA), NMSA 1978, § 10-16F-1 to -6, operates as an exception to disclosure through the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12, because the commission may obtain the requested records through a subpoena, the department erred in denying the commission's public records request, because the commission's ability to obtain pubic records through a subpoena does not mean that it is unable to seek the same records through IPRA, and nothing in the ECPA's text suggests that the legislature intended the statute to operate as an exception to disclosure through IPRA.
Public Records Requests Made by the State Ethics Comm'n
(10/27/21), Att'y Gen. Adv. Ltr. 2021-12.