Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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Entities that receive criminal process (such as subpoenas or search warrants) in Washington state should review Washington’s new Shield Law, which the legislature just passed as part of its post-Dobbs “choice-defending agenda.” The law allows those in Washington who receive out-of-state legal process to ignore the process in certain circumstances. Providers of “electronic communication services” incorporated or having their principal place of business in Washington should take particular note, as the law prohibits them from complying with certain civil and criminal legal process issued in other states. The Shield Law is an important companion to Washington’s nearly enacted privacy law, the My Health, My Data Act, which prohibits most sharing of covered data by regulated entities with any third party without affirmative consent (including sharing with law enforcement, unless the data relates to a criminal violation recognized under Washington state or federal law).

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The Shield Law generally seeks to limit cooperation with other states’ civil or criminal matters related to reproductive health care services or gender-affirming treatments that are lawful in Washington state (which the law calls “protected health care services”). It amends several sections of Washington’s civil and criminal procedure law.

The Shield Law is important for any Washington-based company that receives legal process from another state. But it also broadly prohibits Washington’s government agencies, courts, and officials from cooperating with or providing information in connection with another state’s civil or criminal proceeding that is related to protected health care services.

The law allows entities receiving criminal process from another state to ignore the process when related to protected health care services

Under existing Washington law, any “Washington recipient” served with facially valid criminal process (e.g., a subpoena, search warrant, or court order) issued in another state must comply with the criminal process just as if the process were issued by a Washington court (RCW 10.96.040). This will no longer be true in all cases.

Under the Shield Law, criminal process issued in another state and directed to a Washington recipient must include an attestation (under penalty of perjury) confirming that the process is not related to an individual accessing or providing protected health care services that are lawful in Washington state.

If the process does not include the attestation or if the attestation states that it does relate to protected health care services, the law does not require the recipient to comply with the process. The recipient may also move to modify or quash the subpoena in a Washington court. The law does not prohibit the recipient from complying with the process unless the recipient is an “electronic communication service” (see next section). But note that if the requested information is consumer health data under the My Health, My Data Act, that act would likely prohibit the recipient from sharing the data without the consumer’s affirmative consent.

The law prohibits entities based in Washington that provide electronic communication services from complying with out-of-state legal process related to protected health care services

The Shield Law includes explicit restrictions for providers of electronic communication services incorporated in or have their principal place of business in Washington. These providers are prohibited from taking these actions:

Knowingly providing “records, information, facilities, or assistance in response to a subpoena, warrant, court order, or other civil or criminal legal process” related to an investigation into, or the enforcement of, another state’s law that asserts criminal or civil liability in connection with protected health care services.

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Complying with “a subpoena, warrant, court order, or other civil or criminal legal process for records, information, facilities, or assistance” unless the process includes an attestation stating that it is not related to protected health care services.

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A provider may rely on the representations made in the attestation when evaluating whether it may comply with the process it receives.

A provider may seek to quash a subpoena that is inconsistent with the Shield Law. The law also authorizes the attorney general to bring an action to enjoin any violation of the Shield Law, which would include enjoining a provider from complying with legal process inconsistent with the law’s requirements.

Under Washington law, an electronic communication service is any service that “provides to users thereof the ability to send or receive wire or electronic communications.” A wire communication is any “aural transfer” made through the aid of a wire, cable, or similar connection (such as a telephone call). An electronic communication is a transfer of any “signs, signals, writing, images, sounds, data, or intelligence of any nature” in whole or in part by wire, radio, electromagnetic, photoelectronic, or photo-optical system (including email and Internet communications). While the term electronic communication service clearly captures entities that provide phone and email services to the public, further analysis will be needed to consider other entities that may be swept into its definition.

The law broadly prohibits Washington courts and government agencies from taking actions related to protected health care services

With a few limited exceptions, the law prohibits a Washington court from taking the following actions unless the requesting party attests, and the court finds, that the action is not related to a civil or criminal case involving protected health care services:

In civil cases, issuing a subpoena in Washington that is based on a foreign subpoena (one from another state) or compelling a witness to attend a hearing in a civil case.

In criminal cases, issuing an order authorizing the interception of oral or electronic communications (a “wiretap” order); the use of a pen register, trap and trace, or cell-site simulator device; or a material witness warrant.

The law prohibits law enforcement from executing an arrest warrant issued by another state – and prohibits the governor from extraditing a person to another state – when the underlying crime relates to protected health care services. It also broadly prohibits a wide range of state officials (e.g., a court, judicial officer, court employee or clerk, or public employee or official) from taking actions related to a civil or criminal investigation of protected health care services, including issuing or executing warrants or cooperating with or providing information to any individual or agency from another state.

If a court finds that an individual falsely submitted an attestation required by the law, the law provides for a statutory penalty of $10,000 per violation. The law also creates a counterclaim for “interference with protected health care services” against anyone who files a claim in any court in the United States where the underlying action is based on activity related to protected health care services that occurred in Washington. The law provides for actual damages, costs and attorneys’ fees, and statutory damages of $10,000 where the underlying action is found to be frivolous.

The attorney general also may sue to enjoin any violation of the law.

Effective date and potential challenges

The act includes an “emergency clause,” so it takes effect immediately upon the governor’s signature.

The act also includes a provision addressing its potential conflict with the U.S. Constitution’s Full Faith and Credit Clause. In language added by amendment, the act directs Washington courts to give full faith and credit as required by the U.S. Constitution to the public acts, records, and judicial proceedings of another state and declares that nothing in the act shall be construed to “undermine the primacy of that clause.” Despite this provision, the law’s broad prohibitions have set the stage for constitutional challenges under the Full Faith and Credit Clause and related law, including the Extradition Clause (Article IV, Section 2, Clause 2) and the federal Extradition Act (18 U.S.C. § 3182).

Seattle

Partner

Andreas T. Kaltsounis

Washington State’s New Shield Law, Part of Washington’s ‘Choice-Defending Agenda,’ Modifies Obligations Related to Other States’ Criminal and Civil Process