Privacy & Cybersecurity Law Blog

On June 14, 2013, Texas Governor Rick Perry signed a bill requiring law enforcement agencies to obtain warrants before accessing customer electronic data held by email service providers. Introduced on March 4, 2013, the bill passed unanimously in both the Texas House and Senate on May 7 and May 22, respectively. The law takes effect immediately.

The law amends the Texas Code of Criminal Procedure to require a warrant for the search and seizure of electronic customer data held in electronic storage. Electronic customer data refers to data or records that are in the possession, custody or control of an electronic communications service provider and that contain: (1) information revealing the identity of customers; (2) information about the customer’s use of the service; (3) information identifying the recipient of the customer’s electronic communications; (4) the content of the electronic communication; and (5) any data stored by or on behalf of the customer with the service provider.

Electronic storage is defined as “any storage of electronic customer data in a computer, computer network, or computer system, regardless of whether the data is subject to recall, further manipulation, deletion, or transmission, and includes any storage of a wire or electronic communication by an electronic communications service or a remote computing service.”

Law enforcement agencies may obtain a warrant by showing probable cause that a specific offense has been committed and that the electronic customer data sought (1) constitutes evidence of that offense or that a particular person committed that offense; and (2) is held in electronic storage by the service provider. Only electronic customer data described in the affidavit showing probable cause may be seized under the warrant. Subject to the probable cause requirement, a judge may issue a warrant regardless of whether the customer data is stored in Texas or another state. A warrant may be served on a service provider that is a Texas entity or is doing business in Texas.