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  • PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
  • TITLE II PROCEEDINGS IN CRIMINAL CASES
  • CHAPTER 276 SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST, EXAMINATION, COMMITMENT AND BAIL. PROBATION OFFICERS AND BOARD OF PROBATION
  • Section 1B Search warrants for records possessed by foreign corporations providing electronic communication or remote computing services

Section 1B. (a) As used in this section, the following words shall have the following meanings:—

“Adverse result”, occurs when notification of the existence of a search warrant results in:—

(1) danger to the life or physical safety of an individual;

(2) a flight from prosecution;

(3) the destruction of or tampering with evidence;

(4) the intimidation of a potential witness or witnesses; or

(5) serious jeopardy to an investigation or undue delay of a trial.

“Electronic communication services”, shall be construed in accordance with sections 2701 to 2711 Title 18, of the United States Code. This definition shall not apply to corporations that do not provide electronic communication services to the general public.

“Foreign corporation”, any corporation or other entity that makes a contract or engages in a terms of service agreement with a resident of the commonwealth to be performed in whole or in part by either party in the commonwealth. The making of the contract or terms of service agreement shall be considered to be the agreement of the foreign corporation that a search warrant or subpoena which has been properly served on it has the same legal force and effect as if served personally within the commonwealth.

“Massachusetts corporation”, any corporation or other entity that is subject to chapter 155 or chapter 156B.

“Properly served”, delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest certificate filed pursuant to section 15.03 of chapter 156D.

“Remote computing services”, shall be construed in accordance with sections 2701 to 2711, inclusive, of Title 18, of the United States Code. This definition shall not apply to corporations that do not provide those services to the general public.

“Subpoena”, a grand jury or trial subpoena issued in the course of a criminal proceeding or an administrative subpoena issued pursuant to section 17B of chapter 271.

(b) A court or justice authorized to issue warrants in criminal cases may, upon complaint on oath that the complainant believes that any of the records hereinafter named are actually or constructively possessed by a foreign corporation that provides electronic communication services or remote computing services, if satisfied that probable cause has been established for such belief, issue a warrant identifying those records to be searched for and commanding the person seeking such warrant to properly serve the warrant upon the foreign corporation:—

(1) those records which would reveal the identity of a customer using those services;

(2) data stored by or on behalf of a customer;

(3) records of a customer’s usage of those services;

(4) records of the source of communications sent to or the recipient or destination of communications sent from a customer; or

(5) the content of those communications stored by an electronic communication or remote commuting service.

(c) The following provisions shall apply to any search warrant issued pursuant to this section and to any subpoena issued in the course of a criminal investigation or proceeding directed to a foreign corporation that provides electronic communication services or remote computing services:

(1) when properly served with a search warrant issued by any court of the commonwealth or justice pursuant to this section or a subpoena, a foreign corporation subject to this section shall provide all records sought pursuant to that warrant or subpoena within 14 days of receipt, including those records maintained or located outside the commonwealth;

(2) if the applicant makes a showing and the court or justice finds that failure to produce records within less than 14 days would cause an adverse result, a warrant may require production of records within less than 14 days;

(3) a court or justice 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;

(4) a foreign corporation seeking to quash a warrant or subpoena served on it pursuant to this section shall seek relief from the court that issued the warrant or the court which has jurisdiction over the subpoena within the time required for production of records pursuant to this section. The court shall hear and decide such motion not later than 14 days after the motion is filed;

(5) in the case of an administrative subpoena issued by the attorney general, the superior court of Suffolk county shall have jurisdiction and in the case of an administrative subpoena issued by a district attorney, the superior court in any county in which the district attorney maintains an office shall have jurisdiction; and

(6) the foreign corporation shall verify the authenticity of records that it produces by providing an affidavit from the person in custody of those records certifying that they are true and complete.

(d) A Massachusetts corporation that provides electronic communication services or remote computing services, when served with a warrant or subpoena issued by another state to produce records that would reveal the identity of the customers using those services, data stored by, or on behalf of the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications, shall produce those records as if that warrant or subpoena had been issued under the law of the commonwealth.

(e) No cause of action shall lie against any foreign or Massachusetts corporation subject to this section, its officers, employees, agents or other persons for providing records, information, facilities or assistance in accordance with the terms of a warrant or subpoena issued pursuant to this section.