AN ACT PROVIDING THAT A PROSECUTOR MAY OBTAIN A COURT ORDER ALLOWING A TELEPHONE SERVICE PROVIDER TO WORK WITH A LAW ENFORCEMENT AGENCY AS PART OF A CRIMINAL INVESTIGATION FOR THE PURPOSE OF RECORDING AND PROVIDING THE LAW ENFORCEMENT AGENCY WITH TELEPHONE NUMBERS THAT ARE DIALED FROM A PARTICULAR TELEPHONE AND THE TELEPHONE NUMBERS OF PARTICULAR TELEPHONES USED TO DIAL A TELEPHONE NUMBER.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Definitions. As used in [sections 1 through 5], the following definitions apply:

(1) "Pen register" means a device that records or decodes electronic or other impulses that identify a number dialed or otherwise transmitted on a telephone line to which the pen register is attached. The term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services, such as but not limited to caller identification services, or used for cost accounting or similar purposes in the ordinary course of business.

(2) "Trap and trace device" means a device that records or decodes incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted. The term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services, such as but not limited to caller identification services, or used for cost accounting or similar purposes in the ordinary course of business.

Section 2. Limitations on use of pen register or trap and trace device. (1) A person may not install or use a pen register or trap and trace device without a court order obtained under [section 3], except as provided in subsection (2). Subsection (2) may not be construed to permit a law enforcement agent to operate a pen register or trap and trace device without a court order obtained under [section 3]. The use of a pen register or trap and trace device that has the ability to record conversations is prohibited.

(2) Subsection (1) does not apply to the installation or use of a pen register or trap and trace device by a provider of a wire or electronic communication service:

(a) for the:

(i) operation, maintenance, or testing of the service;

(ii) protection of the rights and property of the provider; or

(iii) protection of a user of the service from abuse of or unlawful use of the service;

(b) to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the communication, or a user of the service from fraudulent, unlawful, or abusive use of the service; or

(c) if the consent of each person whose originating or transmitted number is recorded or decoded is obtained.

(3) A person who knowingly violates subsection (1) commits a criminal offense punishable upon conviction by incarceration for a period of up to 6 months and a fine of up to $500.

Section 3. Order for pen register or trap and trace device -- installation -- disclosures. (1) A prosecutor may apply to the district court for an order, or for the extension of an existing order, for the installation and use of a pen register or a trap and trace device. The application must be in writing and under oath. The application must name the prosecutor and must also name the law enforcement agency that will use the pen register or trap and trace device. The applicant shall show probable cause for the order.

(2) If the court is satisfied that the applicant has shown probable cause for the order, the court shall issue the order. The order must state:

(a) the name, if known, of each person to whom the telephone line is leased or in whose name the telephone line to which a pen register or trap and trace device is to be attached is listed;

(b) the name, if known, of each person who is the subject of the criminal investigation;

(c) the number and, if known, the physical location of each telephone line to which a pen register or trap and trace device is to be attached and, for a trap and trace device, the geographic limits of the court order; and

(d) the offense or offenses to which the information that might be obtained relates.

(3) The order must direct the provider of the telephone service and a landlord, custodian, or other person to furnish the prosecutor and law enforcement agency with the information, facilities, and technical assistance necessary to install and operate the pen register or trap and trace device. The installation and operation must create the most minimal interference with the telephone service of each person whose originating or transmitted telephone number is recorded or decoded. Information received by the service provider from the operation of the pen register or trap and trace device must be given to the law enforcement agency at reasonable intervals during regular business hours.

(4) The order may cover a period not to exceed 60 days and may be extended for periods not to exceed 60 days for each extension. An extension may be granted only if the court is satisfied that probable cause for the extension has been shown.

(5) A person leasing or owning a telephone line that is subject to the order, the provider of the service, and any other person with knowledge of the order, pen register, or trap and trace device may not disclose the existence of the order, pen register, or trap and trace device to any person without the court's permission.

(6) A service provider, landlord, custodian, or other person must be reasonably compensated by the law enforcement agency for expenses incurred in furnishing facilities or assistance relating to the order.

(7) Proceedings conducted under this section are subject to the secrecy and disclosure provisions relating to grand jury proceedings. Any information obtained pursuant to an order issued under this section is confidential criminal justice information subject to the provisions of Title 44, chapter 5.

Section 4. Immunity from suit. Except for gross negligence or willful or wanton misconduct, there is no cause of action against a service provider, landlord, or custodian or their officers, employees, or agents or other nongovernmental person for injury or damage caused in furnishing facilities or assistance under the order or against a service provider or its officers, employees, or agents for providing the law enforcement agency with information received from the operation of the pen register or trap and trace device. The immunity provided by this section does not extend to any governmental agency, law enforcement agent, or prosecutor.

Section 5. Procedural irregularity -- rule of evidence. An irregularity in a proceeding under [sections 1 through 4] may not be used to exclude evidence obtained under an order unless the irregularity affects substantial rights of the accused.

Section 6. Codification instruction. [Sections 1 through 5] are intended to be codified as an integral part of Title 46, and the provisions of Title 46 apply to [sections 1 through 5].

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I hereby certify that the within bill,

SB 0008, originated in the Senate.

Secretary of the Senate

President of the Senate

Signed this	day

of	, .

Speaker of the House

Signed this	day

of	, .

SENATE BILL NO. 8

INTRODUCED BY D. HARGROVE

AN ACT PROVIDING THAT A PROSECUTOR MAY OBTAIN A COURT ORDER ALLOWING A TELEPHONE SERVICE PROVIDER TO WORK WITH A LAW ENFORCEMENT AGENCY AS PART OF A CRIMINAL INVESTIGATION FOR THE PURPOSE OF RECORDING AND PROVIDING THE LAW ENFORCEMENT AGENCY WITH TELEPHONE NUMBERS THAT ARE DIALED FROM A PARTICULAR TELEPHONE AND THE TELEPHONE NUMBERS OF PARTICULAR TELEPHONES USED TO DIAL A TELEPHONE NUMBER.