A1794

An Act concerning electronic communication services and remote computing services and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. As used in this section:

“Adverse result” includes but is not limited to, danger to the life or physical safety of a person, flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, jeopardy to an investigation or undue delay of a trial.

“Domestic corporation” means a corporation for profit organized under the “New Jersey Business Corporation Act,” N.J.S.14A:1-1 et seq., for a purpose or purposes for which a corporation may be organized under the “New Jersey Business Corporation Act,” N.J.S.14A:1-1 et seq., and shall also include any corporation or unincorporated association that conducts business in this State, regardless of whether the entity is organized under any law of this State or is organized for a purpose recognized by the “New Jersey Business Corporation Act,” N.J.S.14A:1-1 et seq.

“Electronic communication service” shall have the same meaning as set forth in section 2 of P.L.1968, c.409 (C.2A:156A-2).

"Foreign corporation" means a corporation for profit organized under the laws of a jurisdiction other than this State for a purpose or purposes for which a corporation may be organized under the “New Jersey Business Corporation Act,” N.J.S.14A:1-1 et seq., and shall also include any corporation or unincorporated association that conducts business in this State, regardless of whether the entity is organized under the laws of any jurisdiction or is organized for a purpose recognized by the “New Jersey Business Corporation Act,” N.J.S.14A:1-1 et seq.

“Properly served” means delivery to a person authorized to receive service of process by hand, overnight delivery service, United States Mail, or any other manner reasonably allowing for proof of delivery. With regard to foreign corporations, service shall be made in accordance with the provisions of N.J.S.14A:4-2.

“Remote computing service” shall have the same meaning as set forth in section 2 of P.L.1968, c.409 (C.2A:156A-2).

b. (1) Except as provided in paragraph (2) of this subsection, a foreign corporation that provides electronic communication services or remote computing services to the general public, when properly served with a search warrant or court order issued by a New Jersey court or a subpoena issued by a New Jersey law enforcement agency, to produce records that would reveal the identity of the customers using those services, data stored by, or on behalf of, those customers, the usage of those services by those customers, the recipients or destinations of communications sent to or from those customers, or the content of those communications, shall produce those records within five business days of the receipt of the warrant, court order or subpoena, including records maintained or located outside this State.

(2) When the applicant for a search warrant or court order makes a showing, and the issuing judge finds, that failure to produce records pursuant to that warrant or court order within less than five business days would cause an adverse result, that warrant or court order may require production of records within less than five business days. A court may reasonably extend the time required for production of the records upon finding that the foreign corporation has shown good cause for that extension and that an extension of time would not cause an adverse result.

(3) A foreign corporation seeking to quash a search warrant or court order shall seek relief from the court that issued that warrant or court order within the time required for production of records pursuant to this subsection. The issuing court shall hear and decide the motion in an expedited manner.

(4) A foreign corporation shall verify the authenticity and accuracy of the records it produces by providing an affidavit. These records shall be admissible in accordance with the New Jersey Rules of Evidence.

c. (1) A domestic corporation that provides electronic communication services or remote computing services to the general public, when properly served with a search warrant, court order or subpoena issued by the United States, another state or any other territory or jurisdiction of the United States to produce records that would reveal the identity of the customers using those services, data stored by, or on behalf of, those customers, the usage of those services by those customers, the recipients or destinations of communications sent to or from those customers, or the content of those communications, shall produce those records as if that warrant or court order had been issued by a New Jersey court or that subpoena had been issued by a New Jersey law enforcement agency.

(2) A domestic corporation which provides records pursuant to this subsection shall also provide an affidavit attesting to the authenticity and accuracy of the records, which affidavit shall be produced in accordance with the rules of evidence of the state or jurisdiction making the request, if those rules of evidence permit. The person requesting the records shall notify the domestic corporation if that affidavit will be needed and the manner in which that affidavit must be drawn.

d. Any corporation, unincorporated association or other person who provides records, information, facilities or assistance pursuant to this section shall be immune from civil liability arising from the provision of the records, information, facilities or assistance.

e. Any corporation, unincorporated association or other person that is subject to the provisions of this section who violates any provision of this section shall be deemed to be in contempt of court. In addition to any penalties that may be imposed for contempt, the violator shall be subject to a civil penalty of not less than $10,000 or more than $50,000. The Attorney General, county prosecutor, or a designee may bring an action in Superior Court to impose and collect the civil penalty, and such other relief as deemed appropriate, pursuant to "The Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction over the action, which shall be decided in a summary manner. In addition to the imposition of a civil penalty, the court may suspend or revoke any license, franchise, certificates of incorporation, or privilege to do business in this State and order any other remedy as the court deems just, including injunctive relief.

Each separate violation of this section shall constitute a distinct violation and a separate sanction shall be imposed for each violation.

2. This act shall take effect immediately.

STATEMENT

This bill requires out-of-State corporations that provide electronic communication or remote computing services to produce certain customer information when required to do so by a New Jersey search warrant, court order or subpoena. The bill also requires in-State corporations that provide these services to produce customer information when required by an out-of-State search warrant, court order or subpoena.

Specifically, foreign corporations that provide electronic communication or remote computing services to the general public are required to fully comply with New Jersey search warrants, court orders and subpoenas seeking such customer records as their identity, the data they store, and the nature and destination of their communications. The foreign corporation has five business days to produce the records, unless the court requires an earlier return date in order to avoid any potential adverse result. The court may grant the corporation more time to produce the information if good cause is shown and there would be no adverse result. The foreign corporation must provide an affidavit attesting to the authenticity of the records. The records would be admissible evidence. The corporation would have to apply to the court that issued the warrant or order to avoid compliance.

This bill also requires domestic corporations that provide electronic communication services or remote computing services to the general public to fully comply with out-of-state search warrants, court orders and subpoenas seeking records that would reveal the identity of customers using those services and other pertinent information about those customers and their usage of those services. In addition to the requested records, a domestic corporation must provide an affidavit attesting to the authenticity and accuracy of the records produced in accordance with the rules of evidence of the requesting jurisdiction.

A foreign or domestic corporation which provides records, information, facilities or assistance pursuant to this bill will be immune from any related civil liability.

Violations of the bill’s provisions would constitute contempt of court. In addition to the penalties imposed for contempt, the violator is subject to a civil penalty of between $10,000 and $50,000 and the court also may suspend or revoke a corporation’s license to do business in the State.