TITLE 16 CRIMES AND OFFENSES

Section 9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157.

ARTICLE 6 COMPUTER SYSTEMS PROTECTION

16-9-109. Disclosures by service providers pursuant to investigations.

Any law enforcement unit, the Attorney General, or any district attorney who is conducting an investigation of a violation of this article or an investigation of a violation of Code Section 16-12-100, 16-12-100.1, 16-12-100.2, 16-5-90, or 16-11-221, Article 8 of Chapter 5 of this title, or Article 8 of this chapter involving the use of a computer, cellular telephone, or any other electronic device used in furtherance of the act may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage in an electronic communications system for 180 days or less pursuant to a search warrant issued under the provisions of Article 2 of Chapter 5 of Title 17 by a court with jurisdiction over the offense under investigation. Such court may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days as set forth in subsection (b) of this Code section.
1. Any law enforcement unit, the Attorney General, or any district attorney may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney:
  1. Obtains a search warrant as provided in Article 2 of Chapter 5 of Title 17;
  2. Obtains a court order for such disclosure under subsection (c) of this Code section; or
  3. Has the consent of the subscriber or customer to such disclosure.
2. A provider of electronic communication service or remote computing service shall disclose to any law enforcement unit, the Attorney General, or any district attorney the:
  1. Name;
  2. Address;
  3. Local and long distance telephone connection records, or records of session times and durations;
  4. Length of service, including the start date, and types of service utilized;
  5. Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
  6. Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service when any law enforcement unit, the Attorney General, or any district attorney uses a subpoena authorized by Code Section 16-9-108, 35-3-4.1, or 45-15-17 or a grand jury or trial subpoena when any law enforcement unit, the Attorney General, or any district attorney complies with paragraph (1) of this subsection.
3. Any law enforcement unit, the Attorney General, or any district attorney receiving records or information under this subsection shall not be required to provide notice to a subscriber or customer. A provider of electronic communication service or remote computing service shall not disclose to a subscriber or customer the existence of any search warrant or subpoena issued pursuant to this article nor shall a provider of electronic communication service or remote computing service disclose to a subscriber or customer that any records have been requested by or disclosed to any law enforcement unit, the Attorney General, or any district attorney pursuant to this article.
A court order for disclosure issued pursuant to subsection (b) of this Code section may be issued by any superior court with jurisdiction over the offense under investigation and shall only issue such court order for disclosure if any law enforcement unit, the Attorney General, or any district attorney offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this Code section, on a motion made promptly by a provider of electronic communication service or remote computing service, may quash or modify such order, if compliance with such order would be unduly burdensome or oppressive on such provider.
1. Any records supplied pursuant to this part shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
  1. The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records;
  2. The copy is a true copy of all the records described in the subpoena, court order, or search warrant and the records were delivered to the attorney, the attorney's representative, or the director of the Georgia Bureau of Investigation or the director's designee;
  3. The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event;
  4. The sources of information and method and time of preparation were such as to indicate its trustworthiness;
  5. The identity of the records; and
  6. A description of the mode of preparation of the records.
2. If the business has none or only part of the records described, the custodian or other qualified witness shall so state in the affidavit.
3. If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, the copy of the records shall be admissible in evidence. When more than one person has knowledge of the facts, more than one affidavit shall be attached to the records produced.
4. No later than 30 days prior to trial, a party intending to offer such evidence produced in compliance with this subsection shall provide written notice of such intentions to the opposing party or parties. A motion opposing the admission of such evidence shall be filed within ten days of the filing of such notice, and the court shall hold a hearing and rule on such motion no later than ten days prior to trial. Failure of a party to file such motion opposing admission prior to trial shall constitute a waiver of objection to such records and affidavit. However, the court, for good cause shown, may grant relief from such waiver.

(Code 1981, §16-9-109, enacted by Ga. L. 2005, p. 199, § 4/SB 62; Ga. L. 2006, p. 72, § 16/SB 465; Ga. L. 2007, p. 283, § 1/SB 98; Ga. L. 2013, p. 524, § 1-3/HB 78; Ga. L. 2017, p. 536, § 3-3/HB 452; Ga. L. 2018, p. 1112, § 16/SB 365.)

The 2017 amendment, effective July 1, 2017, substituted "16-12-100.2, 16-5-90, or 16-11-221," for "16-12-100.2, or 16-5-90," in the first sentence of subsection (a).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (b)(2)(C).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2017, "long distance" was substituted for "long-distance" in subparagraph (b)(2)(C).

Law reviews.

- For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 17 (2017).

JUDICIAL DECISIONS

No expectation of privacy in subscriber information voluntarily conveyed to Internet provider.

- Trial court properly denied the defendant's motion to suppress identifying Internet subscriber information obtained by police pursuant to an administrative subpoena issued under O.C.G.A. § 16-9-108(a) because the defendant lacked standing to challenge the search of the defendant's Internet provider (IP) for identifying information since O.C.G.A. § 16-9-109(b) did not grant a defendant a reasonable expectation of privacy in subscriber information voluntarily conveyed to the IP. Courtney v. State, 340 Ga. App. 496, 797 S.E.2d 496 (2017).

PART 4 I NTERNET AND E-MAIL FRAUD

16-9-109.1. Fraudulent business practices using Internet or e-mail; definitions; penalties and sanctions; immunity.

As used in this part, the term:
1. "E-mail message" means a message sent to a unique destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox, commonly referred to as the "local part," and a reference to an Internet domain, commonly referred to as the "domain part," whether or not displayed, to which an electronic message can be sent or delivered.
2. "Employer" includes a business entity's officers, directors, parent corporation, subsidiaries, affiliates, and other corporate entities under common ownership or control within a business enterprise.
3. "Identifying information" means, with respect to an individual, any of the following:
  1. Social security number;
  2. Driver's license number;
  3. Bank account number;
  4. Credit card or debit card number;
  5. Personal identification number or PIN;
  6. Automated or electronic signature;
  7. Unique biometric data;
  8. Account password; or
  9. Any other piece of information that can be used to access an individual's financial accounts or to obtain goods or services.
4. "Internet" shall have the meaning set forth in paragraph (10) of Code Section 16-9-151.
5. "Web page" means a location that has a single uniform resource locator or other single location with respect to the Internet.
1. It shall be unlawful for any person with intent to defraud, by means of a web page, e-mail message, or otherwise through use of the Internet, to solicit, request, or take any action to induce another person to provide identifying information by representing himself, herself, or itself to be a business without the authority or approval of such business.
2. It shall be unlawful for any person, with actual knowledge, conscious avoidance of actual knowledge, or willfully, to possess with intent to use in a fraudulent manner, sell, or distribute any identifying information obtained in violation of paragraph (1) of this subsection.
Any person who intentionally violates subsection (b) of this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 20 years, a fine of not less than $1,000.00 nor more than $500,000.00, or both.
1. No employer shall be held criminally liable under this Code section as a result of any actions taken:
  1. With respect to computer equipment used by its employees, contractors, subcontractors, agents, leased employees, or other staff which the employer owns, leases, or otherwise makes available or allows to be connected to the employer's network or other computer facilities when such equipment is used for an illegal purpose without the employer's knowledge, consent, or approval; or
  2. By employees, contractors, subcontractors, agents, leased employees, or other staff who misuse an employer's computer equipment for an illegal purpose without the employer's knowledge, consent, or approval.
2. No person shall be held criminally liable under this Code section when its protected computers, computer equipment, or software product has been used by unauthorized users to violate this Code section without such person's knowledge, consent, or approval.
This Code section shall not apply to a telecommunications provider's or Internet service provider's good faith transmission or routing of, or intermediate temporary storing or caching of, identifying information.
No provider of an interactive computer service may be held liable in a civil action under any law of this state, or any of its political subdivisions, for removing or disabling access to content on an Internet website or other online location controlled or operated by such provider, when such provider believes in good faith that such content has been used to engage in a violation of this part.

(Code 1981, §16-9-109.1, enacted by Ga. L. 2008, p. 442, § 1/SB 24; Ga. L. 2011, p. 752, § 16/HB 142.)

RESEARCH REFERENCES

Am. Jur. 2d.

- Am. Jur. 2d New Topic Service, Computers and the Internet, § 91 et seq.

Syfert Injury Law Firm

2018 Georgia Code 16-9-109 | Car Wreck Lawyer