2024 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 16F - Electronic Communications Privacy
Section 10-16F-6 - Annual reporting.
A. A government entity that obtains electronic communication information under the Electronic Communications Privacy Act shall report to the attorney general beginning in 2021 and every year thereafter on or before February 1. The report shall include, to the extent it reasonably can be determined:
(1) the number of times electronic information was sought or obtained under the Electronic Communications Privacy Act;
(2) the number of times each of the following were sought and, for each, the number of records obtained:
(a) electronic communication content;
(b) location information;
(c) electronic device information, excluding location information; and
(d) other electronic communication information; and
(3) for each type of information listed in Paragraph (2) of this subsection:
(a) the number of times that type of information was sought or obtained under: 1) a wiretap order issued under the Electronic Communications Privacy Act; 2) a search warrant issued under the Electronic Communications Privacy Act; and 3) an emergency request as provided in Subsection K of Section 10-16F-3 NMSA 1978;
(b) the number of instances in which information sought or obtained did not specify a target natural person; and
(c) the number of times notice to targeted persons was delayed.
B. Beginning in 2021 and every year thereafter, on or before April 1, the attorney general shall publish on the attorney general's website a summary aggregating each of the items in Subsection A of this section.
C. Nothing in the Electronic Communications Privacy Act prohibits or restricts a service provider from producing an annual report summarizing the demands or requests it receives under the Electronic Communications Privacy Act.
History: Laws 2019, ch. 39, § 6; 2020, ch. 41, § 3.
ANNOTATIONSThe 2020 amendment, effective March 4, 2020, effective March 4, 2020, modified the information required in annual reports submitted by government entities to the New Mexico attorney general, removed the requirement that the New Mexico attorney general publish on its website individual reports received from each government entity, and changed the start date for annual reporting requirements and publication on the New Mexico attorney general's website to 2021; in Subsection A, in the introductory paragraph, after "beginning in", deleted "2020" and added "2021", in Paragraph A(3), in the introductory paragraph, after "Subsection", deleted "J" and added "K", and after "Section", deleted "3 of the Electronic Communications Privacy Act" and added "10-16F-3 NMSA 1978", deleted former Subparagraph A(3)(b) and redesignated former Subparagraph A(3)(c) as Subparagraph A(3)(b), deleted former Subparagraph A(3)(d) and redesignated former Subparagraph A(3)(e) as Subparagraph A(3)(c), and deleted former Subparagraphs A(3)(f) through A(3)(h); and in Subsection B, in the introductory clause, after "Beginning in", deleted "2020" and added "2021", and deleted former Paragraph B(1) and paragraph designation "(2)".
Meaning of the word "sought". — This section requires each government entity to report, among other data, "the number of times electronic information was sought or obtained under the Electronic Communications Privacy Act (act)"; the word "sought" should be interpreted broadly to include all instances in which a government entity attempted to access electronic information in the manner set forth by the act, including unsuccessful attempts to request a warrant or wiretap order from a court. Electronic Communications Privacy Act (8/19/21), Att'y Gen. Adv. Ltr. 2021-07.
"Number of times" construed. — This section requires each government entity to report, among other data, "the number of times electronic information was sought or obtained under the Electronic Communications Privacy Act"; the legislature clearly intended to require government entities to report the number of occasions in which they either obtained or attempted to obtain electronic information. Each warrant, wiretap, or emergency request constitutes its own "time" for purposes of annual data reporting. Electronic Communications Privacy Act (8/19/21), Att'y Gen. Adv. Ltr. 2021-07.
"Other electronic communication information" construed. — This section requires each government entity to report, among other data, the number of times it sought or obtained electronic communication content, location information, "electronic device information, excluding location information," and "other electronic communication information"; in light of the definition provided in 10-16F-2(D) NMSA 1978, the phrase "other electronic communication information" means any electronic communications information other than the content of an electronic communication or the location of the sender or recipient, which may include the time or date of the communication, an internet protocol address, or the identity of the sender or recipient. Electronic Communications Privacy Act (8/19/21), Att'y Gen. Adv. Ltr. 2021-07.
"Number of records" construed. — This section requires each government entity to report, among other data, "the number of times electronic information was sought or obtained under the Electronic Communications Privacy Act (act)" and, for each, the "number of records" obtained: electronic communication content; location information; electronic device information, excluding location information; and other electronic communication information"; in the absence of a clear statutory definition of the word "record" in the act, the best interpretation of the phrase "number of records" is the number of electronic files originally obtained by the government entity containing the requisite information. Moreover, because the act does not require a government entity to report the number of electronic communications received, reporting the number of electronic files obtained appears to be consistent with the legislature's intent. Electronic Communications Privacy Act (8/19/21), Att'y Gen. Adv. Ltr. 2021-07.
