CHAPTER Jus 1500 Demands for Information from Communications Common Carriers

Statutory Authority: RSA 7:6-b, III

PART Jus 1501 PURPOSE AND SCOPE

Jus 1501.01 Purpose. The purpose of these rules is to implement RSA 7:6-b, as reenacted by 2001, 181:1.

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Jus 1501.02 Scope. These rules shall apply to:

(a) Delegations of authority by the attorney general to assistant attorneys general pursuant to RSA 7:6-b, III;

(b) Delegations of authority by the attorney general to county attorneys pursuant to RSA 7:6-b, III;

(c) Delegations of authority by certain county attorneys to assistant county attorneys pursuant to RSA 7:6-b, III;

(d) Applications for the issuance of written demands;

(e) Memoranda of approval or denial of applications for written demands; and

(f) Records of such demands.

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PART Jus 1502 DEFINITIONS

Jus 1502.01 "Communications common carrier" means "communications common carrier" as defined by RSA 570-A:1, IX.

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Jus 1502.02 "Attorney general" means the person holding the office established by N.H. Const. Pt. 1 Art. 46; and appointed in accordance with N.H. Const. Pt. 1, Art. 46 and RSA 21-M:3.

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Jus 1502.03 "Assistant attorney general" means an assistant attorney general nominated and confirmed as required by RSA 21-M:3, III.

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Jus 1502.04 "Assistant county attorney" means a person appointed to the position of assistant county attorney in accordance with the provisions of RSA 7:33-f.

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Jus 1502.05 "County attorney" means the person holding the office of county attorney in each of the ten counties of the state, as established by RSA 7:33, and having been duly elected by the inhabitants of the county or appointed by the superior court or members of the county convention, in accordance with RSA 7:33 or RSA 661:9 (Supp).

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Jus 1502.06 "Delegate" means an assistant attorney general, county attorney, or assistant county attorney to whom the attorney general, or authorized county attorney, has delegated the authority to issue written demands, pursuant to RSA 7:6-b.

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Jus 1502.07 "Written demand" means a letter written by the attorney general or his or her delegate to a communications common carrier demanding the production of certain information concerning a service provided to a person or location, as provided in RSA 7:6-b, I(a) - (f). Such written demand constitutes an administrative subpoena for purposes of determining compliance with federal law.

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PART Jus 1503 DELEGATION OF AUTHORITY TO ASSISTANT ATTORNEYS GENERAL

Jus 1503.01 Registry of Authorized Assistant Attorneys General. The attorney general shall establish and maintain a register of assistant attorneys general to whom the attorney general has delegated the authority to issue written demands pursuant to RSA 7:6-b.

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Jus 1503.02 Prerequisites for Delegation of Authority to Assistant Attorneys General. An assistant attorney general shall not be granted the authority to issue written demands pursuant to RSA 7:6-b, unless such assistant attorney general:

(a) Is assigned to the criminal justice bureau of the attorney general's office; and

(b) Has completed a one-hour training program conducted by the chief of the criminal justice bureau or an associate attorney general with oversight of criminal justice matters.

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Jus 1503.03 Termination of Delegated Authority. The delegation under RSA 7:6-b to an assistant attorney general shall not automatically terminate upon the swearing of a successor attorney general. Such delegation shall end upon the termination, resignation, or reassignment of the assistant attorney general to another bureau within the office, or upon written notice of the attorney general.

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PART Jus 1504 DELEGATION OF AUTHORITY TO COUNTY ATTORNEYS

Jus 1504.01 Registry of Authorized County Attorneys. The attorney general shall establish and maintain a register of county attorneys to whom the attorney general has delegated the authority to issue written demands pursuant to RSA 7:6-b, III.

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Jus 1504.02 Prerequisites to Delegation of Authority to County Attorneys. A county attorney shall be granted the authority to issue written demands upon completion of a one-hour training program conducted by the chief of the criminal justice bureau of the attorney general's office or an associate attorney general with oversight of criminal justice matters. Delegation shall not be contingent upon the existence of an on-going investigation.

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Jus 1504.03 Scope of Authority. The scope of authority delegated to a county attorney shall be limited to the issuance of written demands for information related to an investigation of an offense under RSA 318-B or RSA 649-B.

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Jus 1504.04 Termination of Delegated Authority. The delegation of authority under RSA 7:6-b, III, to a county attorney shall not automatically terminate upon the swearing of a successor attorney general. Such delegation shall end upon the resignation or removal of the county attorney, when a successor is sworn, or upon written notice by the attorney general based on a determination that the county attorney has either abused the delegated authority, engaged in wrongdoing related to that authority, or failed to adequately supervise an assistant county attorney in the exercise of the authority delegated to that assistant county attorney by the county attorney.

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PART Jus 1505 DELEGATION OF AUTHORITY TO ASSISTANT COUNTY ATTORNEYS

Jus 1505.01 Delegation of Authority to Assistant County Attorneys. Pursuant to RSA 7:6-b, III, a county attorney shall have the authority to delegate to any assistant county attorney within the county the authority to issue written demands pursuant to RSA 7:6-b.

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Jus 1505.02 Registry of Authorized County Attorneys. The county attorney shall establish and maintain a register of assistant county attorneys to the county attorney has delegated the authority to issue written demands pursuant to RSA 7:6-b.

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Jus 1505.03 Prerequisites to Delegation A county attorney shall not delegate to an assistant county attorney the authority to issue written demands unless such assistant county attorney has completed a one-hour training program conducted by the county attorney or a deputy county attorney who has received the required training.

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Jus 1505.04 Scope of Delegated Authority. The county attorney shall limit the scope of authority delegated to an assistant county attorney to the issuance of written demands for information related to an investigation of an offense under RSA 318-B or RSA 649-B.

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Jus 1505.05 Termination of Delegated Authority. The delegation of authority to an assistant county attorney shall not automatically terminate upon the swearing of a successor county attorney. Such delegation shall terminate upon the resignation or removal of the assistant county attorney, or upon written

notice of the attorney general or county attorney based upon a finding that the assistant county attorney has either abused the delegated authority or engaged in wrongdoing related to that authority.

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PART Jus 1506 APPLICATION FOR DEMAND TO COMMUNICATIONS COMMON CARRIER

Jus 1506.01 Applicants. Any investigative or law enforcement officer, as defined in RSA 570-A:1, VI, may apply for the issuance of a written demand.

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Jus 1506.02 Where Application Should be Made. An application for a written demand relating to an investigation for an offense under RSA 318-B or RSA 649-B may be directed to the county attorney or assistant county attorney for the county where the investigation is being conducted, provided that the county attorney or assistant county attorney has been authorized to issue such a written demand. All other applications shall be directed to the criminal justice bureau of the attorney general's office.

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Jus 1506.03 Form of Application.

(a) An application for the issuance of a written demand, pursuant to RSA 7:6-b, shall be in letter form, unless an oral application is accepted by the person to whom the application is directed. An oral application shall only be accepted if the person to whom the application is directed determines that there are circumstances of urgency that warrant a waiver of the requirement of a written application.

(b) The application, whether oral or in writing, shall include the following information:

(1) The applicant's name;

(2) The name and address of the law enforcement agency with whom the applicant is employed;

(3) The date of the application;

(4) The alleged unlawful conduct under investigation;

(5) The telephone number, screen name, subscriber name or other subscriber identifier for the service about which information is being sought;

(6) The name, address, telephone and fax number of the communications common carrier from whom information is being sought;

(7) The specific information sought from the communications common carrier, limited to the following, which is reasonably related to the investigation of the alleged unlawful conduct:

a. The names and addresses of persons to whom stated listed or unlisted telephone numbers are assigned;

b. The names and addresses of persons to whom any stated or identified services are provided;

c. Any local and long distance billing records for any subscriber to, or customer of telephone service or wireless telephone service as defined in RSA 638:21, XI;

d. The length of service provided to a subscriber or customer by the communications common carrier;

e. The types of services provided to the subscriber or customer by the communications common carrier; and

f. The telephone number or other subscriber number or identity; and

(8) A description of the facts that form the applicant's reasonable grounds for belief that the service being furnished by the communications common carrier to the targeted person or location has been, is being, or may be used for an unlawful purpose.

(c) If an oral application is accepted, the attorney who received such application shall prepare a written memorandum documenting the information submitted by the applicant under Jus 1506.03(b) and the basis upon which the requirement of a written application was waived.

Jus 1506.04 Manner of Submission. The applicant shall submit the application either by facsimile, mail, electronically, or orally if allowed under Jus 1506.03(a).

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PART Jus 1507 APPROVAL OR DENIAL OF APPLICATION FOR WRITTEN DEMAND

Jus 1507.01 Persons Authorized to Act on an Application. An application for a written demand shall only be acted upon by the attorney general, or authorized delegate.

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Jus 1507.02 Denial of Application.

(a) An application shall be denied if the attorney general or authorized delegate determines that:

(1) The information being sought from the communications common carrier does not fall within any of the categories designated in RSA 7:6-b; I, (a) - (f); or

(2) The information contained in the application does not establish reasonable grounds to believe that the service being furnished by the communications common carrier to the targeted person or location identified in the application has been, is being, or may be used for an unlawful purpose.

(b) If the application is denied, the attorney general, or authorized delegate shall notify the applicant, either orally or by facsimile, letter, or e-mail, and explain the basis for the denial. If the notification is done orally, the attorney general, or authorized delegate shall also document the denial and the basis thereof, either by notation on the written application or in a separate memorandum.

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Jus 1507.03 Approval of Application.

(a) An application shall be approved if:

(1) the information provided establishes reasonable grounds to believe that the service being furnished by the communications common carrier to the targeted person or location identified in the application has been, is being, or may be used for an unlawful purpose; and

(2) the information being sought from the communications common carrier falls within one or more of the categories designated in RSA 7:6-B, I, (a)-(f).

(b) If an application is approved, the authorized person shall complete a memorandum of approval, prior to the issuance of a demand letter, containing the following:

(1) The applicant's name;

(2) The name and address of the law enforcement agency with whom the applicant is employed;

(3) The date of the application;

(4) The alleged unlawful conduct under investigation;

(5) The telephone number, screen name, subscriber name or other subscriber identifier for the service about which information is being sought;

(6) The name, address, telephone and fax number of the communications common carrier from whom information is being sought;

(7) The specific information sought from the communications common carrier, limited to the following, which is reasonably related to the investigation of the alleged unlawful conduct:

a. The names and addresses of persons to whom stated listed or unlisted telephone numbers are assigned;

b. The names and addresses of persons to whom any stated or identified services are provided;

c. Any local and long distance billing records for any subscriber to, or customer of telephone service or wireless telephone service as defined in RSA 638:21, XI;

d. The length of service provided to a subscriber or customer by the communications common carrier;

e. The types of services provided to the subscriber or customer by the communications common carrier;

f. The telephone number or other subscriber number or identity; and

(8) The factual basis for the authorized person's reasonable grounds for belief that the service being furnished by the communications common carrier to the targeted person or location has been, is being, or may be used for an unlawful purpose; and

(9) The authorized person's signature.

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PART Jus 1508 ISSUANCE OF WRITTEN DEMAND TO COMMUNICATIONS COMMON CARRIER

Jus 1508.01 Demand Issued from Attorney General's Office. A written demand issued by the attorney general or an authorized assistant attorney general, pursuant to RSA 7:6-b, shall be issued on the letterhead of the attorney general's office.

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Jus 1508.02 Demand Issued from County Attorney's Office. A written demand issued by an authorized county attorney or assistant county attorney, pursuant to RSA 7:6-b, shall be issued on the letterhead of the county attorney's office.

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Jus 1508.03 Content of Written Demand. The written demand shall include the following:

(a) A statement indicating that the person making the written demand is authorized to make such a demand, pursuant to a delegation of authority by the attorney general or county attorney under RSA 7:6-b, III;

(b) A statement that the person making the written demand has reasonable grounds for belief that the service being furnished to the targeted person or location by the communications common carrier has been, is being, or may be used for an unlawful purpose;

(c) A list of the specific information being sought from the communications common carrier, as designated in RSA 7:6-b, I(a) - (f);

(d) A statement indicating that the written demand shall constitute an administrative subpoena for purposes of determining compliance with federal law; and

(e) A statement indicating to whom the requested information shall be provided and the requested format in which the information shall be furnished.

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Jus 1508.04 Manner of Transmission. The demand shall be transmitted to the communications common carrier by any one or more of the following means, consistent with Jus 1508.01 through 1508.03:

(a) In person;

(b) By first class mail;

(c) By electronic facsimile transmission; or

(d) By other electronic means.

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PART Jus 1509 RECORDS

Jus 1509.01 Retention of Records.

(a) The attorney general shall retain the following records for ten years in a centralized location:

(1) A register of assistant attorneys general to whom the attorney general has delegated authority under RSA 7:6-b;

(2) A register of county attorneys to whom the attorney general has delegated authority under RSA 7:6-b;

(3) A copy of each application for written demand submitted to the attorney general's office, and each memorandum documenting an oral application made to such office;

(4) A copy of each memorandum of denial, or notation thereof on a written application, and each memorandum of approval written by the attorney general or any authorized assistant attorney general; and

(5) A copy of every demand letter issued by the attorney general or an authorized assistant attorney general to a communications common carrier pursuant to RSA 7:6-B.

(b) Each county attorney receiving a delegation of the attorney general's authority, pursuant to RSA 7:6-b, shall retain the following records for ten years in a centralized location:

(1) A register of assistant county attorneys to whom the county attorney has delegated authority under RSA 7:6-b;

(2) A copy of each application for written demand submitted to the county attorney's office and each memorandum documenting an oral application made to such office;

(3) A copy of each memorandum of denial, or notation thereof on a written application, and each memorandum of approval written by the county attorney or any authorized assistant county attorney in the county; and

(4) A copy of each demand letter issued by the county attorney or an authorized assistant county attorney in the county.

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Jus 1509.02 Manner of Retention. Such documents shall be maintained in either electronic or paper format.

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Jus 1509.03 Public Disclosure. The registers referred to in Jus 1509.01(a)(1), (a)(2), and (b)(1) shall be subject to disclosure under RSA 91-A. Other records maintained in accordance with this part shall be disclosable to the public unless exempt pursuant to RSA 91-A, but this section shall not be construed as altering the application of RSA 91-A to such records.

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APPENDIX

Rule Number

State Statute/Federal Regulation Implemented

 

 

Jus. 1501.01 - .02

RSA 7:6-b, III

Jus. 1502.01

RSA 7:6-b, I and III

Jus. 1502.02

RSA 7:6-b, I and III; RSA 541-A:7

Jus. 1502.03 - .06

RSA 7:6-b, III; RSA 541-A:7

Jus. 1502.07

RSA 7:6-b, I and III; RSA 541-A:7

Jus. 1503.01 - .03

RSA 7:6-b, III

Jus. 1504.01 - .04

RSA 7:6-b, III

Jus. 1505.01 - .04

RSA 7:6-b, III

Jus. 1506.01

RSA 7:6-b, I; RSA 541-A:7

Jus. 1506.02 - .04

RSA 7:6-b, I and III

Jus. 1507.01

RSA 7:6-b, III

Jus. 1507.02 - .03

RSA 7:6-b, I and III

Jus. 1508.01 - .02

RSA 7:6-b, III

Jus. 1508.03

RSA 7:6-b, I, II, and III

Jus. 1509.01 - .03

RSA 7:6-B, III