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| CODE OF CRIMINAL PROCEDURE CHAPTER 18. SEARCH WARRANTS service provider shall create the copy not later than two business days after the date of the receipt by the service provider of the subpoena or court order. (b) The service provider shall immediately notify the authorized peace officer who presented the subpoena or court order requesting the copy when the copy has been created. (c) Except as provided by Section 7 of this article, the authorized peace officer shall notify the subscriber or customer whose communications are the subject of the subpoena or court order of the creation of the copy not later than three days after the date of the receipt of the notification from the service provider that the copy was created. (d) The service provider shall release the copy to the requesting authorized peace officer not earlier than the 14th day after the date of the peace officer's notice to the subscriber or customer if the service provider has not: (1) initiated proceedings to challenge the request of the peace officer for the copy; or (2) received notice from the subscriber or customer that the subscriber or customer has initiated proceedings to challenge the request. (e) The service provider may not destroy or permit the destruction of the copy until the information has been delivered to the law enforcement agency or until the resolution of any court proceedings, including appeals of any proceedings, relating to the subpoena or court order requesting the creation of the copy, whichever occurs last. (f) An authorized peace officer who reasonably believes that notification to the subscriber or customer of the subpoena or court order would result in the destruction of or tampering with information sought may request the creation of a copy of the information. The peace officer's belief is not subject to challenge by the subscriber or customer or service provider. (g)(1) A subscriber or customer who receives notification as described in Subsection (c) of this section may file a written motion to quash the subpoena or vacate the court order in the court that issued the subpoena or court order not later than the 14th day after the date of the receipt of the notice. The motion must contain an affidavit or sworn statement stating that: (A) the applicant is a subscriber or customer of the service from which the contents of electronic communications stored for the subscriber or customer have been sought; and (B) the applicant's reasons for believing that the information sought is not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article in some other respect. (2) The subscriber or customer shall give written notice to the service provider of the challenge to the subpoena or court order. The authorized peace officer or law enforcement agency requesting the subpoena or court order shall be served a copy of the papers filed by personal delivery or by registered or certified mail. (h)(1) The court shall order the authorized peace officer to file a sworn response to the motion filed by the subscriber or customer if the court determines that the subscriber or customer has complied with the requirements of Subsection (g) of this section. On request of the peace officer, the court may permit the response to be filed in camera. The court may conduct any additional proceedings the court considers appropriate if the court is unable to make a determination on the motion on the basis of the parties' initial allegations and response. (2) The court shall rule on the motion as soon after the filing of the officer's response as practicable. The court shall deny the motion if the court finds that the applicant is not the subscriber or customer whose stored communications are the subject of the subpoena or court order or that there is reason to believe that the peace officer's inquiry is legitimate and that the communications sought are relevant to that inquiry. The court shall quash the subpoena or vacate the order if the court finds that the applicant is the subscriber or customer whose stored communications are the subject of the subpoena or court order and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article. (3) A court order denying a motion or application under this section is not a final order and no interlocutory appeal may be taken from the denial. Delay of notification Sec. 7. (a) An authorized peace officer seeking a court order to obtain information under Section 4(c) of this article may include a request for an order delaying the notification required under Section 4(c) of this article for a period not to exceed 90 days. The court shall grant the request if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result, as described in Subsection (c) of this section. (b) An authorized peace officer who has obtained a subpoena authorized by statute or a grand jury subpoena to seek information under Section 4(c) of this article may delay the notification required under that section for a period not to exceed 90 days on the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result as described in Subsection (c) of this section. The peace officer shall maintain a true copy of the certification. (c) In this section an "adverse result" means: (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of a potential witness; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (d) A court may grant one or more extensions of the delay of notification provided by this section of up to 90 days on request or by certification by a supervisory official if the original requirements under Subsection (a) or (b) of this section are met for each extension. (e) When the delay of notification under this section expires, the authorized peace officer shall serve, by personal delivery or registered or certified mail, the subscriber or customer a copy of the process or request together with notice that: (1) states with reasonable specificity the nature of the law enforcement inquiry; and (2) informs the subscriber or customer: (A) that information stored for the subscriber or customer by the service provider named in the process or request was supplied to or requested by the peace officer and the date on which the information was supplied or requested; (B) that notification to the subscriber or customer was delayed; (C) of the name of the supervisory official who made the certification or the court that granted the request for the delay of notification; and (D) of which provision of this article permitted the delay of notification. Preclusion of notification Sec. 8. When an authorized peace officer seeking information under Section 4 of this article is not required to give notice to the subscriber or customer or is delaying notification under Section 7 of this article, the peace officer may apply to the court for an order commanding the service provider to whom a warrant, subpoena, or court order is directed not to disclose to any other person the existence of the warrant, subpoena, or court order. The order is effective for the period the court considers appropriate. The court shall enter the order if the court determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will have an adverse result as described in Section 7(c) of this article. Reimbursement of costs Sec. 9. (a) Except as provided by Subsection (c) of this section, an authorized peace officer who obtains information under this article shall reimburse the person assembling or providing the information for all costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. These costs include costs arising from necessary disruption of normal operations of an electronic communications service or remote computing service in which the information may be stored. (b) The authorized peace officer and the person providing the information may agree on the amount of reimbursement. If there is no agreement, the court that issued the order for production of the information shall determine the amount. If no court order was issued for production of the information, the court before which the criminal prosecution relating to the information would be brought shall determine the amount. (c) Subsection (a) of this section does not apply to records or other information maintained by a communications common carrier that relate to telephone toll records or telephone listings obtained under Section 4(e) of this article unless the court determines that the amount of information required was unusually voluminous or that an undue burden was imposed on the provider. No cause of action Sec. 10. A subscriber or customer of a wire or electronic communications or remote computing service does not have a cause of action against a wire or electronic communications or remote computing service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance as required by a court order, warrant, subpoena, or certification under this article. Disclosure of stored communications Sec. 11. (a) Except as provided by Subsection (c) of this section, a provider of an electronic communications service may not knowingly divulge the contents of a communication that is in electronic storage. (b) Except as provided by Subsection (c) of this section, a provider of remote computing service may not knowingly divulge the contents of any communication that is: (1) in electronic storage; (2) stored on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and (3) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing. (c) A provider of an electronic communications or remote computing service may divulge the contents of an electronically stored communication: (1) to an intended recipient of the communication or that person's agent; (2) to the addressee or that person's agent; (3) with the consent of the originator, to the addressee or the intended recipient of the communication, or the subscriber of a remote computing service; (4) to a person whose facilities are used to transmit the communication to its destination or the person's employee or authorized representative; (5) as may be necessary to provide the service or to protect the property or rights of the provider of the service; (6) to a law enforcement agency if the contents were obtained inadvertently by the service provider and the contents appear to pertain to the commission of a crime; or (7) as authorized under federal or other state law. Cause of action Sec. 12. (a) Except as provided by Section 10 of this article, a provider of electronic communications service or subscriber or customer of an electronic communications service aggrieved by a violation of this article has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally and is entitled to: (1) injunctive relief; (2) a reasonable attorney's fee and other litigation costs reasonably incurred; and (3) the sum of the actual damages suffered and any profits made by the violator as a result of the violation or $1,000, whichever is more. (b) The reliance in good faith on a court order, warrant, subpoena, or legislative authorization is a complete defense to any civil action brought under this article. (c) A civil action under this section may be presented within two years after the date the claimant first |
