WEST virginia legislature
2017 regular session
Introduced
House Bill 2505
By Delegates Rowan, Arvon, Sobonya, Cooper, O’Neal, Shott, Storch, Gearheart and Ellington
[Introduced February 16,
2017; Referred
to the Committee on the Judiciary.]
A BILL to amend and reenact §62-1D-2 of the Code of West Virginia, 1931, as amended, relating to Wiretapping and Electronic Surveillance Act; excluding from protection under the act oral communications uttered in a child care center where there are notices posted informing persons that their oral communications are being intercepted; and defining “child care center”.
Be it enacted by the Legislature of West Virginia:
That §62-1D-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.
§62-1D-2. Definitions.
As used in this article, unless the context in which used clearly requires otherwise, the following terms have the meanings indicated:
(a) (1) “Aggrieved person” means a person who was
a party to any intercepted wire, oral or electronic communication or a person
against whom the interception was directed.
(p) (2) “Aural transfer” means a transfer
containing the human voice at any point between and including the point of
origin and the point of reception.
(3) “Child care center” means a facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, for the care of children in any setting.
(b) (4) “Communications common carrier” means any
telegraph company or telephone company and any radio common carrier.
(c) (5) “Contents”, when used with respect to any
wire, oral or electronic communication, includes any information concerning the
substance, purport or meaning of that communication.
(f) (6) “Designated judge” means a circuit court
judge designated by the Chief Justice of the West Virginia Supreme Court of
Appeals to hear and rule on applications for the interception of wire, oral or
electronic communications.
(l) (7) “Electronic communication” means any
transfer of signs, signals, writing, images, sounds, data or intelligence of
any nature transmitted, in whole or in part, by a wire, radio,
electro-magnetic, photo-electronic or photo-optical system, but does not
include:
(1) (A) The radio portion of a cordless telephone
communication that is transmitted between the cordless telephone handset and
the base unit;
(2) (B) Any wire or oral communication;
(3) (C) Any combination made through a tone-only
paging device.
(o) (8) “Electronic communication service”
means any service which provides to users thereof the ability to send or
receive wire or electronic communications.
(n) (9) “Electronic communications system”
means any wire, radio, electromagnetic, photo-optical or photo-electronic
facilities for the transmission of electronic communications, and any computer
facilities or related electronic equipment for the electronic storage of such
the communications.
(d) (10) “Electronic, mechanical or other
device” means any device or apparatus: (i) Which can be used to
intercept a wire, oral or electronic communication; or (ii) the design of which
render it primarily useful for the surreptitious interception of any such
communication. There is excepted from this definition:
(1) (A) Any telephone or telegraph instrument,
equipment or facility or any component thereof: (a) Furnished to the subscriber
or user by a provider of wire or electronic communication service in the
ordinary course of its business and being used by the subscriber or user in the
ordinary course of its business; or furnished by such the
subscriber or user for connection to the facilities of such the
service and used in the ordinary course of its business; or (b) being used by a
communications common carrier in the ordinary course of its business or by an
investigative or law-enforcement officer in the ordinary course of his or
her duties; or
(2) (B) A hearing aid or similar device being used
to correct subnormal hearing to not better than normal; or
(3) (C) Any device used in a lawful consensual
monitoring including, but not limited to, tape recorders, telephone induction
coils, answering machines, body transmitters and pen registers.
(e) (11) “Intercept” means the aural
or other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or other device.
(g) (12) “Investigative or law-enforcement
officer” means a member or members of the Department of Public Safety
West Virginia State Police who is or are empowered by law to conduct
investigations of or to make arrest for offenses enumerated in this chapter.
(h) (13) “Oral communication” means
any oral communication uttered by a person exhibiting an expectation that such
the communication is not subject to interception under circumstances
justifying such the expectation. but such The term
does not include: any
(A) An electronic communication; or
(B) An oral communication uttered in any child care center where there are notices posted informing persons that their oral communications are being intercepted.
(i) (14) “Pen register” means a
device which records or decodes electronic or other impulses which identify the
numbers dialed or otherwise transmitted on the telephone line to which such
the device is attached, but such the term does not include
any 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 provided by such the provider or any device used by a
provider or customer of a wire communication service for cost accounting or
other like purposes in the ordinary course of its business.
(j) (15) “Person” means any person,
individual, partnership, association, joint stock company, trust or corporation
and includes any police officer, employee or agent of this state or of a
political subdivision thereof.
(q) (16) “Trap and trace device”
means a device which captures the incoming electronic or other impulses which
identify the originating number of an instrument or device from which a wire or
electronic communication was transmitted.
(m) (17) “User” means any person or
entity who or which uses an electronic communication service and is duly
authorized by the provider of such the service to engage in such
that use.
(k) (18) “Wire communication” means
any aural transfer made, in whole or in part, through the use of facilities for
the transmission of communications by the aid of wire, cable or other like
connection between the point of origin and the point of reception (including
the use of such the connection in a switching station) furnished
or operated by any person engaged in providing or operating such the
facilities for the transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce and such the
term includes any electronic storage of such the communication,
but such the term does not include the radio portion of a
cordless telephone communication that is transmitted between the cordless
telephone handset and the base unit.
NOTE: The purpose of this bill is to exclude from protection under the Wiretapping and Electronic Surveillance Act oral communications uttered in a child care center where there are notices posted informing persons that their oral communications are being intercepted; and defining “child care center”.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.