HB 2622 Ignores Definitions & Procedures Already in Place for Online Service Providers

Texas Policy Spotlight

Texas House Bill 2622 attempts to replace “Internet service provider” with “online service provider” in Chapter 24 of the Texas Code of Criminal Procedure (CCP). It defines an online service provider as a “web browsing company, manufacturer of devices providing online application platforms, or company providing online social media platforms,” among others. These definitions are vague at best, and they differ greatly from definitions used in current legislation.

Conflicting Definitions

The Federal Electronic Communications Privacy Act (ECPA), with which all states are obligated to comply, and the CCP employ the terms “provider of remote computing service (RCS)” and “provider of electronic communications services” to identify the types of service providers this bill attempts to define. ECPA clearly defines an RCS as the “provision to the public of computer storage or processing services by means of an electronic communications system.”

It also clearly defines a provider of electronic communications as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” This definition incudes email services, cell phone service provider, and websites that permit users to send and receive communications in general. We find these definitions to be accurate and complete, and most likely already include what the author of this bill attempts to define.

Redundant Procedures

Most provisions put forth in House Bill 2622 already exist under ECPA and/or the Texas Code of Criminal Procedure, Chapter 18.21, and they are not as detailed as those procedures outlined in already existing legislation. For example, the bill calls for the addition of “preserving information” or the retention of data for a 90-day period upon request from a law enforcement agency, but this process is already outlined in the CCP 18.21, and also in ECPA.

HB 2622 also stipulates that an online service provider that disobeys a subpoena, warrant or court order may be punished in any manner provided by law, which is an unnecessary provision due to the court’s inherent authority to sanction noncompliance.

The procedure outlined in 2622 slightly differs from the CCP in that it shortens the timeframe for providers to respond to a subpoena, warrant or court order, and allows only two days for a service provider to comply when any person is under threat of death or serious bodily injury. However, the CCP already states that a providers’ time to comply can be shortened if there is danger to the life or physical safety of any person.

Lacks Rights for Service Providers

HB 2622 fails to protect online service providers from lawsuits and other liabilities. It lacks a no cause of action clause for service providers like the ones included in ECPA and CCP 18.21:

“No cause of action shall lie in any court against any provider of wire or electronic communication service…in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.”

The bill also does not include reasonable reimbursement of costs to the provider for complying with court requests, such as those included in the CCP, Article 18.21 §9: “costs include costs arising from necessary disruption of normal operations.”

Article 18.21 of the CCP also allows for a motion to quash and allows service providers to request an extension of the period of compliance if extenuating circumstances exist to justify the extension, while HB 2622 does not.

Conclusion

It seems that the author of the bill had intentions of hastening court procedures for specific crimes and perhaps extending the scope of companies currently covered by ECPA and the CCP. We cannot guess how the new definitions in this bill would line up with the definitions in the CCP and ECPA. They conflict with what is already in place, and would ultimately cause confusion among law enforcement officials, the judiciary and companies that would be ordered to comply with these procedures. Parties involved would likely consult Chapter 18 of the CCP and ECPA to sort out any confusion.

If the author believes something is lacking in the current CCP, he should amend Chapter 18 rather than attempting to reinvent the wheel in Chapter 24.

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