HB161: HB161 Georgia Bureau of Investigation; authority to issue subpoenas of electronic communication records for purposes of investigating certain cyber enabled threats to life and property; provide

25 HB 161/AP House Bill 161 (AS PASSED HOUSE AND SENATE) By: Representatives Crowe of the 118 th, Reeves of the 99 th, New of the 40 th, Camp of the 135th, and Smith of the 18th A BILL TO BE ENTITLED AN ACT To amend Article 1 of Chapter 3 of Title 35 of the Official Cod e of Georgia Annotated,1 relating to general provisions relative to the Georgia Bureau of Investigation, to provide for2 authority to issue subpoenas of electronic communication record s for purposes of3 investigating certain crimes relating to cyber enabled threats to life and property; to provide4 for punishment for failure to obey certain subpoenas; to prohibit disclosure of the issuance5 of certain subpoenas during the pendency of an investigation; to amend Title 16 and Code6 Sections 20-3-10, 36-80-23, and 38-3-40 of the Official Code of Georgia Annotated, relating7 to crimes and offenses, sanctuary policies prohibited and penalty for violation, prohibition8 on immigration sanctuary policies by local governmental entities, certification of compliance,9 and punishment, and definitions relative to the Board of Homela nd Security, respectively,10 so as to repeal the definition of ' dom estic terrorism ' ; to establish the crime of domestic11 terrorism; to make conforming changes; to provide for related matters; to repeal conflicting12 laws; and for other purposes.13 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:14 H. B. 161 - 1 - 25 HB 161/AP PART I15 SECTION 1-1.16 Article 1 of Chapter 3 of Title 35 of the Official Code of Geor gia Annotated, relating to17 general provisions relative to the Georgia Bureau of Investigation, is amended by revising18 Code Section 35-3-4.1, relating to subpoena for production of e lectronic communication19 service records for computer or electronic device used in furth erance of certain offenses20 against minors, as follows:21 "35-3-4.1.22 (a)(1) In any investigation of a violation of Code Section 16- 12-100, 16-12-100.1,23 or 16-12-100.2 involving the use of a computer or an electronic device in furtherance of24 an act related to a minor, or any investigation of a violation of Article 8 of Chapter 9 of25 Title 16, the T h e director, assistant director of the bureau , or deputy director for26 investigations of the bureau shall be authorized to issue a subpoena, with the consent of27 the Attorney General, to compel the production of electronic communication service or28 remote communication computing service records or other information pertaining to a29 subscriber or customer of such service, exclusive of contents of communications, in any30 investigation of a violation of:31 (A) Code Section 16-12-100, 16-12-100.1, or 16-12-100.2 involv ing the use of a32 computer or an electronic device in furtherance of an act related to a minor;33 (B) Article 8 of Chapter 9 of Title 16; or34 (C) Code Section 16-9-93, 16-10-28, 16-11-37, 16-11-39.1, or 16-11-221.35 (2) A provider of electronic communication service or remote computing service shall36 disclose to the bureau the following as relative to the subscri ber or customer of such37 service:38 (A) Name;39 (B) Address;40 H. B. 161 - 2 - 25 HB 161/AP (C) Local and long distance telephone connection records, or records of session times41 and durations;42 (D) Length of service, including the start date, and types of service utilized;43 (E) Telephone or instrument number or other subscriber number or identity, including44 any temporarily assigned network address; and45 (F) Means and source of payment for such service, including any credit card or bank46 account number of a subscriber to or customer of such service.47 (3) A provider of electronic communication service or remote computing service shall48 not provide notification of the subpoena issued pursuant to par agraph (1) of this49 subsection to the subscriber or customer of such service.50 (b) Upon failure of a person without lawful excuse to obey a s ubpoena, the director,51 assistant director of the bureau , or the deputy director for investigations of the bureau,52 through the Attorney General or district attorney, may apply to a superior court having53 jurisdiction for an order compelling compliance. Such person may object to the subpoena54 on grounds that it fails to comply with this Code section or upon any constitutional or other55 legal right or privilege of such person. The court may issue an order modifying or setting56 aside such subpoena or directing compliance with the original subpoena. Failure to obey57 a subpoena issued under this Code section may be punished by th e court as contempt of58 court.59 (c) The Attorney General may request that a natural person who refuses to produce60 relevant matter included in a subpoena issued pursuant to this Code section on the ground61 that the production of such records may incriminate such person be ordered by the court62 to provide such records. With the exception of a prosecution for perjury, a natural person63 who complies with the court order to provide such records asser ting a privilege against64 self-incrimination to which he or she is entitled by law shall not be prosecuted or subjected65 to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning66 which he or she may testify or produce evidence, documentary or otherwise.67 H. B. 161 - 3 - 25 HB 161/AP (d)(1) The issuance of a subpoena pursuant to this Code section shall not be made public68 during any pending investigation or prosecution of criminal or unlawful activity beyond69 the extent necessary for the issuance and compliance of the sub poena and compliance70 with Chapter 16 of Title 17.71 (2) Information obtained pursuant to a subpoena enforced by this Code section shall not72 be made public or, except as authorized in paragraph (2)(3) of this subsection, disclosed73 by the director of the bureau, assistant director, deputy director for investigations of the74 bureau, or the director's employees beyond the extent necessary for the enforcement of75 this Code section.76 (2)(3) The director, assistant director of the bureau, deputy director for investigations of77 the bureau, or the director's employees shall be authorized to provide to any federal, state,78 or local law enforcement agency any information acquired under this Code section in79 furtherance of a criminal investigation in violation of Code Se ction 16-12-100,80 16-12-100.1, or 16-12-100.2.81 (e) As used in this Code section, the terms 'electronic communication service' and 'remote82 computing service' shall have the same meaning as set forth in Code Section 16-9-92."83 PART II84 SECTION 2-1.85 Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is86 amended in Code Section 16-11-220, relating to definitions relative to domestic terrorism,87 as follows:88 "16-11-220.89 As used in this article, the term:90 (1) 'Assassination' means the intentional killing of an electe d public official by an91 individual acting to prevent or retaliate for the performance of official duties or because92 of the public position held by the official.93 H. B. 161 - 4 - 25 HB 161/AP (2) 'Critical infrastructure' means publicly or privately owned f acilities, systems,94 functions, or assets, whether physical or virtual, providing or distributing services for the95 benefit of the public, including, but not limited to, energy, fuel, water, agriculture, health96 care, finance, communication, or any other vital public service.97 (2) 'Domestic terrorism' means any felony violation of, or att empt to commit a felony98 violation of the laws of this state which, as part of a single unlawful act or a series of99 unlawful acts which are interrelated by distinguishing characteristics, is intended to cause100 serious bodily harm, kill any i ndividual or group of individual s, or disable or destroy101 critical infrastructure, a state or government facility, or a p ublic transportation system102 when such disability or destruction results in major economic loss, and is intended to:103 (A) Intimidate the civilian population of this state or any of its political subdivisions;104 (B) Alter, change, or coerce the policy of the government of t his state or any of its105 political subdivisions by intimidation or coercion; or106 (C) Affect the conduct of the government of this state or any of its political107 subdivisions by use of destructive devices, assassination, or kidnapping.108 (3) 'Public transportation system' means all facilities, conveyances, and instrumentalities,109 whether publicly or privately owned, that are used in or for publicly available services110 for the transportation of individuals or cargo.111 (4) 'Serious bodily harm' means harm to the body of another by depriving him or her of112 a member of his or her body, by rendering a member of his or he r body useless, or by113 seriously disfiguring his or her body or a member thereof.114 (5) 'State or government facility' means any permanent or temp orary facility or115 conveyance that is used or occupied by representatives of this state or any of its political116 subdivisions, by the legislature, by the judiciary, or by officials or employees of this state117 or any of its political subdivisions.118 (6) 'Vital public service' shall have the same meaning as prov ided in Code Section119 16-7-22.120 H. B. 161 - 5 - 25 HB 161/AP SECTION 2-2.121 Said title is further amended by revising Code Section 16-11-22 1, relating to penalties for122 domestic terrorism, as follows:123 "16-11-221.124 (a) A person commits the crime of domestic terrorism when he or she commits or attempts125 to commit a felony violation of the laws of this state which, as part of a single unlawful act126 or a series of unlawful acts which are interrelated by distingu ishing characteristics, is127 intended to cause serious bodily harm, kill any individual or g roup of individuals, or128 disable or destroy critical infrastructure, a state or governme nt facility, or a public129 transportation system when such disability or destruction results in major economic loss,130 and is intended to:131 (1) Intimidate the civilian population of this state or any of its political subdivisions;132 (2) Alter, change, or coerce the policy of the government of t his state or any of its133 political subdivisions by intimidation or coercion; or 134 (3) Affect the conduct of the government of this state or any of its political subdivisions135 by use of destructive devices, assassination, or kidnapping.136 (b) Any person who commits domestic terrorism shall be guilty of a felony and upon137 conviction thereof shall be punished as follows:138 (1) If death results to any individual, by death, by imprisonment for life without parole,139 or by imprisonment for life;140 (2) If kidnapping occurs, by imprisonment for not less than 15 nor more than 35 years,141 or by imprisonment for life;142 (3) If serious bodily harm occurs, by imprisonment for not less than 15 nor more than 35143 years; or144 (4) If critical infrastructure, a state or government facility , or a public transportation145 system is disabled or destroyed, by imprisonment for not less than five nor more than 35146 years.147 H. B. 161 - 6 - 25 HB 161/AP (b)(c) No sentence imposed under this Code section shall be suspended, stayed, probated,148 deferred, or withheld by the sentencing court; provided, howeve r, that in the court's149 discretion, the court may suspend, stay, probate, defer, or withhold part of such sentence150 when the prosecuting attorney and the defendant have agreed to such sentence."151 SECTION 2-3.152 Said title is further amended in Code Section 16-14-3, relating to definitions relative to153 racketeer influenced and corrupt organizations, by revising subparagraph (B) of paragraph154 (4) as follows:155 "(B) Engaging in any one or more acts of domestic terrorism as described in paragraph156 (2) of Code Section 16-11-220 16-11-221 or any criminal attempt, criminal solicitation,157 or criminal conspiracy related thereto."158 SECTION 2-4.159 Code Section 20-3-10 of the Official Code of Georgia Annotated, relating to sanctuary160 policies prohibited and penalty for violation, by revising paragraph (4) of subsection (a) as161 follows:162 "(4) 'Status information' means any information, not including any information required163 by law to be kept confidential but otherwise including, but not limited to, any statement,164 document, computer generated data, recording, or photograph, which is relevant to the165 identity or location of an individual who is reasonably believe d to be violating state or166 federal laws, illegally residing within the United States, or who is reasonably believed to167 be involved in domestic terrorism as that term is defined in Code Section 16-11-220 in168 violation of Code Section 16-11-221 or a terroristic act as that term is defined by Code169 Section 35-3-62."170 H. B. 161 - 7 - 25 HB 161/AP SECTION 2-5.171 Code Section 36-80-23 of the Official Code of Georgia Annotated, relating to prohibition on172 immigration sanctuary policies by local governmental entities, certification of compliance,173 and punishment, by revising paragraph (3) of subsection (a) as follows:174 "(3) 'Immigration status information' means any information, no t including any175 information required by law to be kept confidential but otherwi se including, but not176 limited to, any statement, document, computer generated data, recording, or photograph,177 which is relevant to immigration status or the identity or location of an individual who178 is reasonably believed to be illegally residing within the Unit ed States or who is179 reasonably believed to be involved in domestic terrorism as that term is defined in Code180 Section 16-11-220 in violation of Code Section 16-11-221 or a terroristic act as that term181 is defined by Code Section 35-3-62."182 SECTION 2-6.183 Code Section 38-3-40 of the Official Code of Georgia Annotated, relating to definitions184 relative to the Board of Homeland Security, by revising paragraph (4) as follows:185 "(4) 'Domestic terrorism' shall have the same meaning as set fo rth in Code Section186 16-11-220.means an offense of Code Section 16-11-221."187 PART III188 SECTION 3-1.189 All laws and parts of laws in conflict with this Act are repealed.190 H. 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