SB 178: Privacy: electronic communications: search warrant.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-10-08
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant under specified conditions, except for emergency situations, as defined. The bill would also specify the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to describe with particularity the information to be seized and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention, sealing, and disclosure. The bill would require a warrant directed to a service provider to be accompanied by an order requiring the service provider to verify by affidavit the authenticity of electronic information that it produces, as specified. The bill would authorize a service provider to voluntarily disclose, when not otherwise prohibited by state or federal law, electronic communication information or subscriber information, and would require a government entity to destroy information so provided within 90 days, subject to specified exceptions. The bill would, subject to exceptions, require a government entity that executes a search warrant pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or statement describing the emergency under which the notice was delayed. The bill would provide that any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant under specified conditions, except for emergency situations, as defined. The bill would also specify the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to describe with particularity the information to be seized and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention, sealing, and disclosure. The bill would require a warrant directed to a service provider to be accompanied by an order requiring the service provider to verify by affidavit the authenticity of electronic information that it produces, as specified. The bill would authorize a service provider to voluntarily disclose, when not otherwise prohibited by state or federal law, electronic communication information or subscriber information, and would require a government entity to destroy information so provided within 90 days, subject to specified exceptions. The bill would, subject to exceptions, require a government entity that executes a search warrant pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or statement describing the emergency under which the notice was delayed. The bill would provide that any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, or order for electronic reader records, or subpoena issued pursuant under specified conditions, except for emergency situations, as defined. The bill would also specify the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to describe with particularity the information to be seized and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention, sealing, and disclosure. The bill would require a warrant directed to a service provider to be accompanied by an order requiring the service provider to verify by affidavit the authenticity of electronic information that it produces, as specified. The bill would authorize a service provider to voluntarily disclose, when not otherwise prohibited by state or federal law, electronic communication information or subscriber information, and would require a government entity to destroy information so provided within 90 days, subject to specified exceptions. The bill would, subject to exceptions, require a government entity that executes a search warrant pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or statement describing the emergency under which the notice was delayed. The bill would provide that any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, or order for electronic reader records, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search describe with particularity the information to be seized and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention retention, sealing, and disclosure. The bill would require a warrant directed to a service provider to be accompanied by an order requiring the service provider to verify by affidavit the authenticity of electronic information that it produces, as specified. The bill would authorize a service provider to voluntarily disclose, when not otherwise prohibited by state or federal law, electronic communication information or subscriber information, and would require a government entity to destroy information so provided within 90 days, subject to specified exceptions. The bill would, subject to exceptions, require a government entity that executes a search warrant pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or statement describing the emergency under which the notice was delayed. The bill would provide that any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, or order for electronic reader records, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, warrant, wiretap order, or order for electronic reader records, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information and electronic device information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions. The bill would also require a government entity that obtains electronic information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Existing
(1)Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information, service provider, information and electronic device information. information, which the bill defines collectively as electronic information. The bill would require a search warrant for electronic communication information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic communication information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant or warrant, wiretap order, or other order issued pursuant to these provisions. The bill would also require a government entity that obtains electronic communication information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.
(2)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
The
(3)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information, service provider, and electronic device information. The bill would require a search warrant for electronic communication information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic communication information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant or wiretap order issued pursuant to these provisions. The bill would also require a government entity that obtains electronic communication information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.
This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant or wiretap order, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, electronic communication information, service provider, and electronic device information. The bill would require a search warrant for electronic communication information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant or wiretap order pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant or order or statement describing the emergency under which the notice was delayed. The bill would provide that electronic communication information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. The bill would also require a government entity that obtains electronic communication information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information.
(b)(1)When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information.
(b)(1)When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information.
(b)(1)When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction Destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall be limited to only that information necessary to achieve the objective of the warrant, describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(2)
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made. the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may disclose, but shall not be required to disclose, voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless the one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency. emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant, or requests obtains electronic information in an emergency pursuant to Section 1546.1, shall contemporaneously serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information.
(b)(1)When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient of an electronic communication.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall be limited to only that information necessary to achieve the objective of the warrant, by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, upon a finding that the facts did not give rise to an emergency. emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant, or requests electronic information in an emergency pursuant to Section 1546.1, shall contemporaneously serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency.
(b)(1)When a warrant is sought under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
1546.4.(a)Any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient of an electronic communication.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device.
(b)A government entity may compel the production of or access to electronic communication information subject to subdivision (d) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant. from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(1)In accordance with
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in accordance with a search warrant issued pursuant to Chapter 3 (commencing with Section 1523), provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant. 1.
(2)
(3)With the specific consent of the authorized possessor of the device.
(3)
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(4)
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(5)
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant or wiretap order for electronic information shall comply with the following:
(1)The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including warrant, by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services, services covered, and the types of information, and the time periods covered, as appropriate. information sought.
(2)The warrant or order shall identify the effective date upon which the warrant or order is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)
(2)The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders. warrants.
(e)When issuing any warrant or wiretap order for electronic information, or upon the petition from the target or recipient of the warrant or wiretap order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall delete destroy that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information obtained, upon a finding that the facts did not give rise to an emergency.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or obtains warrant, or requests electronic information in an emergency pursuant to Section 1546.1 1546.1, shall contemporaneously serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.
(c)(1)When a wiretap order or search
(b)(1)When a warrant is sought under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, each individual whose electronic information was acquired, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of a warrant or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, wiretap order, or other legal process may petition the issuing court to void or modify the warrant, wiretap order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent means consent delivered provided directly to the government entity seeking information. information, including, but not limited to, when the government entity is the addressee or intended recipient of an electronic communication.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device.
(b)A government entity may compel the production of or access to electronic information subject to subdivision (d) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)In accordance with a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in accordance with a search warrant issued pursuant to Chapter 3 (commencing with Section 1523), provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant.
(2)With the specific consent of the authorized possessor of the device, including when a government entity is the intended recipient of an electronic communication initiated by the authorized possessor of the device. device.
(3)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(4)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(5)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant or wiretap order for electronic information shall comply with the following:
(1)The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
(2)The warrant or order shall identify the effective date upon which the warrant or order is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
(e)When issuing any warrant or wiretap order for electronic information, or upon the petition from the target or recipient of the warrant or wiretap order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information obtained, upon a finding that the facts did not give rise to an emergency.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or obtains electronic information in an emergency pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.
(c)(1)When a wiretap order or search warrant is sought under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, each individual whose electronic information was acquired, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, wiretap order, or other legal process may petition the issuing court to void or modify the warrant, wiretap order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(j)Service provider means a person or entity offering an electronic communication service.
(k)Specific consent is means consent delivered directly to the government entity seeking information.
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the device.
(b)A government entity may compel the production of or access to electronic information subject to subdivision (d) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)In accordance with a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in accordance with a search warrant issued pursuant to Chapter 3 (commencing with Section 1523), provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant.
(2)With the specific consent of the authorized possessor of the device, including when a government entity is the intended recipient of an electronic communication initiated by the authorized possessor of the device.
(3)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(4)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(5)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant or wiretap order for electronic information shall comply with the following:
(1)The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
(2)The warrant or order shall identify the effective date upon which the warrant or order is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
(e)When issuing any warrant or wiretap order for electronic information, or upon the petition from the target or recipient of the warrant or wiretap order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information obtained, upon a finding that the facts did not give rise to an emergency.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or obtains electronic information in an emergency pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, wiretap order, or emergency request or access, to all individuals about whom information was disclosed or obtained. submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.
(c)(1)When a wiretap order or search warrant is sought under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, each individual whose electronic information was acquired, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, wiretap order, or other legal process may petition the issuing court to void or modify the warrant, wiretap order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
1546.6.A government entity that obtains electronic information pursuant to this chapter shall make an annual report to the Attorney General. The report shall be made on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report shall include all of the following:
(a)The number of requests or demands for electronic information.
(b)The number of requests or demands made, and the number of records received for each of the following types of records:
(1)Electronic communication content.
(2)Location information.
(3)Other electronic information.
(c)For each of the types of records listed in subdivision (b), all of the following:
(1)The number of requests or demands that were each of the following:
(A)Wiretap orders obtained pursuant to this chapter.
(B)Search warrants obtained pursuant to this chapter.
(C)Emergency requests pursuant to subdivision (h) of Section 1546.1.
(2)The total number of users whose information was requested or demanded.
(3)The total number of requests or demands that did not specify a target individual.
(4)The number of requests or demands complied with in full, partially complied with, or refused.
(5)The number of times the notice to the affected party was delayed and the average length of the delay.
(6)The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
(7)For contents of electronic communications, the total number of communications contents received.
(8)For location information, the average period for which location information was obtained or received and the total number of location records received.
(9)For other electronic communication information, the types of records requested and the total number of records of each type received.
1546.8.(a)On or before April 1, 2017, and each April 1 thereafter, the Department of Justice shall publish on its Internet Web site both of the following:
(1)The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
(2)A summary aggregating each of the items in subdivisions (a) to (c), inclusive of Section 1546.6.
(b)Nothing in this chapter shall prohibit or restrict a service provider from producing an annual report summarizing the demands or requests it receives under this chapter.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information is means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service is means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Electronic information means electronic communication information or electronic device information.
(h)
(i)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(i)
(j)Service provider means a person or entity offering an electronic communication service.
(j)
(k)Specific consent is consent delivered directly to the government entity seeking information.
(k)
(l)Subscriber information means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized possessor of the device.
(b)A government entity may compel the production of or access to electronic communication information or electronic device information, or access electronic device information by means of physical interaction or electronic communication with the device, information subject to subdivision (c) (d) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)In accordance with a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in accordance with a search warrant issued pursuant to Chapter 3 (commencing with Section 1523), provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant.
(2)With the specific consent of the owner or authorized possessor of the device, including when a government entity is the intended recipient of an electronic communication initiated by the owner or authorized possessor of the device.
(3)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(4)If the government entity, in good faith, believes that an emergency involving imminent danger of death or serious physical injury to any person requires access to the electronic device information.
(5)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(d)Any warrant or wiretap order for electronic communication information or electronic device information shall comply with the following:
(1)The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
(2)The warrant or order shall identify the effective date upon which the warrant or order is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
(e)When issuing any warrant or wiretap order for electronic communication information or electronic device information, or upon the petition from the target or recipient of the warrant or wiretap order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(h)If a government entity requests that a service provider disclose information, or if the government entity obtains information, obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after seeking disclosure, obtaining the electronic information, file with the appropriate court a motion seeking approval of the requested emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information received in response to the request obtained, upon a finding that the facts did not give rise to an emergency.
(i)This section does not limit the authority of a governmental government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues obtains electronic information in an emergency request pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, wiretap order, or emergency request or access, to all individuals about whom information was disclosed or obtained.
(c)(1)When a wiretap order or search warrant is sought under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, each individual whose electronic communication information was acquired, a document that includes the information described in subdivision (a), a copy of all electronic information disclosed obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic communication information or electronic device information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)If a warrant or wiretap order does not comply An individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with this chapter, or the California or United States Constitution, or a service provider, provider or any other recipient of the warrant or wiretap order, or any individual whose information is targeted by the warrant or wiretap order, warrant, wiretap order, or other legal process may petition the issuing court to void or modify the warrant or wiretap order warrant, wiretap order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to this chapter.
1546.6.A government entity that obtains electronic communication information pursuant to this chapter shall make an annual report to the Attorney General. The report shall be made on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report shall include all of the following:
(a)The number of requests or demands for electronic communication information.
(b)The number of requests or demands made, and the number of records received for each of the following types of records:
(1)Electronic communication content.
(2)Location information.
(3)Electronic device information.
(4)
(3)Other electronic communication information.
(c)For each of the types of records listed in subdivision (b), all of the following:
(1)The number of requests or demands that were each of the following:
(A)Wiretap orders obtained pursuant to this chapter.
(B)Search warrants obtained pursuant to this chapter.
(C)Emergency requests pursuant to subdivision (h) of Section 1546.1.
(2)The total number of users whose information was requested or demanded.
(3)The total number of requests or demands that did not specify a target individual.
(4)The number of requests or demands complied with in full, partially complied with, or refused.
(5)The number of times the notice to the affected party was delayed and the average length of the delay.
(6)The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
(7)For contents of electronic communications, the total number of communications contents received.
(8)For location information, the average period for which location information was obtained or received and the total number of location records received.
(9)For other electronic communication information, the types of records requested and the total number of records of each type received.
1546.8.(a)On or before April 1, 2017, and each April 1 thereafter, the Department of Justice shall publish on its Internet Web site both of the following:
(1)The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
(2)A summary aggregating each of the items in subdivisions (a) to (c), inclusive of Section 1546.6.
(b)Nothing in this chapter shall prohibit or restrict a service provider from producing an annual report summarizing the demands or requests it receives under this chapter.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information is any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, location, or time or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service is a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(i)Service provider means a person or entity offering an electronic communication service.
(j)Specific consent is consent delivered directly to the government entity seeking information that is given in response to a specific request and is valid only for a specified period of time. Specific consent may be withdrawn at any time. information.
(k)Subscriber information means the name, street address, phone telephone number, email address, or similar contact information provided by the subscriber to the provider of an electronic communication service for the purpose of establishing a communication channel between that subscriber and that provider, to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized possessor of the device.
(b)A government entity may compel the production of or access to electronic communication information or electronic device information, or access electronic device information by means of physical interaction or electronic communication with the device, subject to subdivision (c) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)In accordance with a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in accordance with a search warrant issued pursuant to Chapter 3 (commencing with Section 1523), provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant.
(2)With the specific consent of the owner or authorized possessor of the device, when a government entity is the intended recipient of an electronic communication initiated by the owner or authorized possessor of the device.
(3)With the specific consent of the owner of the device when the device has been reported as lost or stolen.
(4)If the government entity, in good faith, believes that an emergency involving imminent danger of death or serious physical injury to any person requires access to the electronic device information.
(5)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(c)
(d)Any warrant or wiretap order for electronic communication information or electronic device information shall comply with the following:
(1)The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
(2)The warrant or order shall identify the effective date upon which the warrant is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
(d)
(e)When issuing any warrant or wiretap order for electronic communication information or electronic device information, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(e)
(f)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by law.
(f)
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (e) (f), it shall delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(g)
(h)If a government entity requests that a service provider disclose information, or if the government entity obtains information, pursuant to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C., involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after seeking disclosure, file with the appropriate court a motion seeking approval of the requested emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information received in response to the request upon a finding that the facts did not give rise to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C. emergency.
(i)This section does not limit the authority of a governmental entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues an emergency request pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, to all individuals about whom information was disclosed or obtained.
(c)(1)When a wiretap order or search warrant is sought under Section 1546.1, the government entity may include in the application submit a request supported by a sworn affidavit for an order delaying notification and prohibiting the any party on whom the warrant or order is served from notifying the subject of the warrant or order. providing information from notifying any other party that information has been sought. The court shall grant the request issue the order if the court determines that there is reason to believe that notification of the existence of the warrant may have an adverse result, but only for the period of time that the court finds there is reason to believe that the warrant notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the warrant notification, the government entity shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the warrant order authorizing delayed notification, each individual whose electronic communication information was acquired, a document that includes the information described in subdivision (a), a copy of all information disclosed or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(4)
(d)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic communication information or electronic device information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)If a warrant or wiretap order does not comply with this chapter, a service provider, any other recipient of the warrant or wiretap order, or any individual whose information is targeted by the warrant or wiretap order, may petition the issuing court to void or modify the warrant or wiretap order or to order the destruction of any information obtained in violation of this chapter.
(d)A California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant or wiretap order issued pursuant to this chapter.
1546.6.A government entity that obtains electronic communication information pursuant to this chapter shall make an annual report to the Attorney General. The report shall be made on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report shall include all of the following:
(a)The number of requests or demands for electronic communication information.
(b)The number of requests or demands made, and the number of records received for each of the following types of records:
(1)Electronic communication content.
(2)Location information.
(3)Electronic device information.
(4)Other electronic communication information.
(c)For each of the types of records listed in subdivision (b), all of the following:
(1)The number of requests or demands that were each of the following:
(A)Wiretap orders obtained pursuant to this chapter.
(B)Search warrants obtained pursuant to this chapter.
(C)Emergency requests pursuant to subdivision (g) (h) of Section 1546.1.
(2)The total number of users whose information was requested or demanded.
(3)The total number of requests or demands that did not specify a target individual.
(4)The number of requests or demands complied with in full, partially complied with, or refused.
(5)The number of times the notice to the affected party was delayed and the average length of the delay.
(6)The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
(7)For contents of electronic communications, the total number of communications contents received.
(8)For location information, the average period for which location information was obtained or received and the total number of location records received.
(9)For other electronic communication information, the types of records requested and the total number of records of each type received.
1546.8.(a)On or before April 1, 2017, and each April 1 thereafter, the Department of Justice shall publish on its Internet Web site both of the following:
(1)The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
(2)A summary aggregating each of the items in subdivisions (a) to (c), inclusive of Section 1546.6.
(b)Nothing in this chapter shall prohibit or restrict a service provider from producing an annual report summarizing the demands or requests it receives under this chapter.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
For purposes of this chapter, the following definitions apply:
(a)An adverse result means any of the following:
(1)Danger to the life or physical safety of an individual.
(2)Flight from prosecution.
(3)Imminent destruction of or tampering with evidence.
(4)Intimidation of potential witnesses.
(5)Serious jeopardy to an investigation or undue delay of a trial.
(b)Authorized possessor means the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
(c)Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
(d)Electronic communication information is any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, location, or time of the sender or recipients at any point during the communication, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter.
(e)Electronic communication service is a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
(f)Electronic device means a device that stores, generates, or transmits information in electronic form.
(g)Electronic device information means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
(h)Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.
(i)Service provider means a person or entity offering an electronic communication service.
(j)Specific consent is consent delivered directly to the government entity seeking information that is given in response to a specific request and is valid only for a specified period of time. Specific consent may be withdrawn at any time.
(k)Subscriber information means the name, street address, phone number, email address, or similar contact information provided by the subscriber to the provider of an electronic communication service for the purpose of establishing a communication channel between that subscriber and that provider, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized possessor of the device.
(b)A government entity may compel the production of or access to electronic communication information or electronic device information, or access electronic device information by means of physical interaction or electronic communication with the device, subject to subdivision (c) and only pursuant to a wiretap order pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1, or pursuant to a search warrant pursuant to Chapter 3 (commencing with Section 1523), provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
(c)Any warrant or wiretap order for electronic communication information or electronic device information shall comply with the following:
(1)The order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
(2)The order shall identify the effective date upon which the warrant is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
(3)The order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
(d)When issuing any warrant or wiretap order for electronic communication information or electronic device information, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
(e)A service provider may disclose, but shall not be required to disclose, electronic communication information or subscriber information when that disclosure is not otherwise prohibited by law.
(f)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (e), it shall delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed or obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(g)If a government entity requests that a service provider disclose information pursuant to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C., the entity shall, within three days after seeking disclosure, file with the appropriate court a motion seeking approval of the requested emergency disclosures that shall set forth the facts giving rise to the emergency. The court shall promptly rule on the motion and shall order the immediate destruction of all information received in response to the request upon a finding that the facts did not give rise to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C.
1546.2.(a)Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues an emergency request pursuant to Section 1546.1 shall contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant, order, or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
(b)If there is no identified target of a warrant, wiretap order, or emergency request at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, to all individuals about whom information was disclosed.
(c)(1)When a wiretap order or search warrant is sought under Section 1546.1, the government entity may include in the application a request supported by a sworn affidavit for an order delaying notification and prohibiting the party on whom the warrant or order is served from notifying the subject of the warrant or order. The court shall grant the request if the court determines that there is reason to believe that notification of the existence of the warrant may have an adverse result, but only for the period of time that the court finds there is reason to believe that the warrant notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the warrant notification, the government entity shall serve upon, or deliver by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the warrant, each individual whose electronic communication information was acquired, a document that includes the information described in subdivision (a), a copy of all information disclosed or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(4)Except as otherwise provided in this section, nothing in this chapter shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic communication information or electronic device information.
1546.4.(a)Except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)If a warrant or wiretap order does not comply with this chapter, a service provider, any other recipient of the warrant or wiretap order, or any individual whose information is targeted by the warrant or wiretap order, may petition the issuing court to void or modify the warrant or wiretap order or to order the destruction of any information obtained in violation of this chapter.
1546.6.A government entity that obtains electronic communication information pursuant to this chapter shall make an annual report to the Attorney General. The report shall be made on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report shall include all of the following:
(a)The number of requests or demands for electronic communication information.
(b)The number of requests or demands made, and the number of records received for each of the following types of records:
(1)Electronic communication content.
(2)Location information.
(3)Electronic device information.
(4)Other electronic communication information.
(c)For each of the types of records listed in subdivision (b), all of the following:
(1)The number of requests or demands that were each of the following:
(A)Wiretap orders obtained pursuant to this chapter.
(B)Search warrants obtained pursuant to this chapter.
(C)Emergency requests pursuant to subdivision (g) of Section 1546.1.
(2)The total number of users whose information was requested or demanded.
(3)The total number of requests or demands that did not specify a target individual.
(4)The number of requests or demands complied with in full, partially complied with, or refused.
(5)The number of times the notice to the affected party was delayed and the average length of the delay.
(6)The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
(7)For contents of electronic communications, the total number of communications contents received.
(8)For location information, the average period for which location information was obtained or received and the total number of location records received.
(9)For other electronic communication information, the types of records requested and the total number of records of each type received.
1546.8.(a)On or before April 1, 2017, and each April 1 thereafter, the Department of Justice shall publish on its Internet Web site both of the following:
(1)The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
(2)A summary aggregating each of the items in subdivisions (a) to (c), inclusive of Section 1546.6.
(b)Nothing in this chapter shall prohibit or restrict a service provider from producing an annual report summarizing the demands or requests it receives under this chapter.
SEC. 2.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
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|---|---|
| Sep 4, 2015 | Ordered to third reading. |
| Jun 24, 2015 | Read second time and amended. Re-referred to Com. on PUB. S. |
| Jul 7, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB. S. |
| Jul 14, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (July 14). Re-referred to Com. on APPR. |
| Aug 17, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on APPR. |
| Aug 19, 2015 | August 19 set for first hearing. Placed on APPR. suspense file. |
| Aug 28, 2015 | From committee: Do pass as amended. (Ayes 15. Noes 0.) (August 27). |
| Aug 28, 2015 | Read second time and amended. Ordered to second reading. |
| Aug 31, 2015 | Read second time. Ordered to third reading. |
| Sep 4, 2015 | Action rescinded whereby the bill was read a third time and amended. |
| Jun 23, 2015 | From committee: Do pass as amended and re-refer to Com. on PUB. S. (Ayes 9. Noes 0.) (June 23). |
| Sep 4, 2015 | Read third time and amended. |
| Sep 8, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 8, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 8, 2015 | Read third time. Passed. (Ayes 57. Noes 13. Page 2974.) Ordered to the Senate. |
| Sep 9, 2015 | Assembly amendments concurred in. (Ayes 34. Noes 4. Page 2644.) Ordered to engrossing and enrolling. |
| Sep 9, 2015 | Assembly amendments concurred in. (Ayes 34. Noes 4.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Enrolled and presented to the Governor at 10:45 p.m. |
| Oct 8, 2015 | Approved by the Governor. |
| Oct 8, 2015 | Chaptered by Secretary of State. Chapter 651, Statutes of 2015. |
| Apr 27, 2015 | April 27 hearing: Placed on APPR. suspense file. |
| Feb 10, 2015 | From printer. May be acted upon on or after March 12. |
| Feb 19, 2015 | Referred to Com. on PUB. S. |
| Mar 6, 2015 | Set for hearing March 24. |
| Mar 16, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB. S. |
| Mar 24, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 6. Noes 1. Page 404.) (March 24). Re-referred to Com. on APPR. |
| Apr 10, 2015 | Set for hearing April 20. |
| Apr 15, 2015 | April 20 hearing postponed by committee. |
| Apr 17, 2015 | Set for hearing April 27. |
| Apr 22, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on APPR. |
| Feb 9, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 23, 2015 | Set for hearing May 28. |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 7. Noes 0. Page 1148.) (May 28). |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 7. Noes 0.) (May 28). |
| Jun 2, 2015 | Read second time and amended. Ordered to third reading. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 39. Noes 0. Page 1301.) Ordered to the Assembly. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 39. Noes 0.) Ordered to the Assembly. |
| Jun 4, 2015 | In Assembly. Read first time. Held at Desk. |
| Jun 11, 2015 | Referred to Coms. on P. & C.P. and PUB. S. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 9, 2015 | Unfinished Business SB178 Leno Concurrence | Senate Floor |
Passed |
|
| Sep 8, 2015 | SB 178 Leno Senate Third Reading By OBERNOLTE | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 14, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
|
| Jun 23, 2015 | Do pass as amended and be re-referred to the Committee on [Public Safety] | Assembly Standing Committee on Privacy and Consumer Protection |
Passed |
|
| Jun 3, 2015 | Senate 3rd Reading SB178 Leno | Senate Floor |
Passed |
|
| May 28, 2015 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 27, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Mar 24, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 17 individual legal scholars | ** Support | Sep 4, 2015 |
| 17 Law School Professors | ** Support | Sep 4, 2015 |
| Airbnb, Inc. | ** Support | Sep 9, 2015 |
| American Civil Liberties Union of California | ** Support | Sep 4, 2015 |
| American Library Association | ** Support | Sep 9, 2015 |
| Apple Inc. | ** Support | Sep 9, 2015 |
| Asian Americans Advancing Justice | ** Support | Sep 9, 2015 |
| Bay Area Civil Liberties Coalition | ** Support | Sep 4, 2015 |
| Bay Area Council | ** Support | Sep 9, 2015 |
| California Attorneys For Criminal Justice | ** Support | Sep 9, 2015 |
| California Chamber Of Commerce | ** Support | Sep 9, 2015 |
| California Civil Liberties Advocacy | ** Support | Sep 4, 2015 |
| California Correctional Peace Officers Association | ** Against | Sep 9, 2015 |
| California District Attorneys Association | ** Against | Sep 4, 2015 |
| California Immigrant Policy Center | ** Support | Sep 4, 2015 |
| California Library Association | ** Support | Sep 4, 2015 |
| California Newspaper Publishers Association | ** Support | Sep 9, 2015 |
| California Police Chiefs Association | ** Against | Sep 4, 2015 |
| California Public Defenders Association | ** Support | Sep 9, 2015 |
| California State Lodge, Fraternal Order of Police | ** Against | Sep 9, 2015 |
| California State Sheriffs Associaiton | ** Against | Sep 4, 2015 |
| California State Sheriffs' Association | ** Against | Sep 4, 2015 |
| California Statewide Law Enforcement Association | ** Against | Sep 4, 2015 |
| Center for Democracy and Technology | ** Support | Sep 9, 2015 |
| Center for Media Justice | ** Support | Sep 9, 2015 |
| Centro Legal de la Raza | ** Support | Sep 9, 2015 |
| Citizens for Criminal Justice Reform | ** Support | Sep 9, 2015 |
| Citizens for Criminal Justice Reform - California | ** Support | Sep 4, 2015 |
| Civil Justice Association Of California | ** Support | Sep 9, 2015 |
| Color of Change | ** Support | Sep 9, 2015 |
| ColorOfChange.org | ** Support | Sep 4, 2015 |
| Consumer Action | ** Support | Sep 9, 2015 |
| Consumer Federation | ** Support | Sep 9, 2015 |
| Council on American-Islamic Relations | ** Support | Sep 9, 2015 |
| Dropbox | ** Support | Sep 9, 2015 |
| Drug Policy Alliance | ** Support | Sep 4, 2015 |
| Electronic Frontier Foundation | ** Support | Sep 9, 2015 |
| Ella Baker Center For Human Rights | ** Support | Sep 4, 2015 |
| Facebook, Inc. | ** Support | Sep 9, 2015 |
| Foursquare | ** Support | Sep 9, 2015 |
| Foursquare Labs, Inc. | ** Support | Sep 4, 2015 |
| Google Inc. | ** Support | Sep 4, 2015 |
| Internet Archive | ** Support | Sep 9, 2015 |
| Legal Services for Prisoners with Children | ** Support | Sep 9, 2015 |
| ** Support | Sep 9, 2015 | |
| Long Beach Police Officers Association | ** Against | Sep 9, 2015 |
| Los Angeles County Professional Peace Officers Association | ** Against | Sep 9, 2015 |
| Media Alliance | ** Support | Sep 9, 2015 |
| Microsoft | ** Support | Sep 9, 2015 |
| Namecheap, Inc. | ** Support | Sep 4, 2015 |
| National Center for Lesbian Rights | ** Support | Sep 9, 2015 |
| New America's Open Technology Institute | ** Support | Sep 4, 2015 |
| New America: Open Technology Institute | ** Support | Sep 9, 2015 |
| Oakland Privacy Working Group | ** Support | Sep 4, 2015 |
| One private individual | ** Support | Sep 4, 2015 |
| Open Technology Institute | ** Support | Sep 4, 2015 |
| Privacy Rights Clearinghouse | ** Support | Sep 9, 2015 |
| Protect.org | ** Against | Sep 9, 2015 |
| PUB. S. | ** Against | Sep 4, 2015 |
| ** Support | Sep 9, 2015 | |
| Restore the 4th | ** Support | Sep 9, 2015 |
| Restore the Fourth | ** Support | Sep 4, 2015 |
| Restore the Fourth Bay Area Chapter | ** Support | Sep 4, 2015 |
| Restore the Fourth, Bay Area Chapter | ** Support | Sep 4, 2015 |
| Sacramento County Deputy Sheriffs' Association | ** Against | Sep 9, 2015 |
| San Diego Police Officers Association | ** Support | Sep 9, 2015 |
| Sixteen law professors. | ** Support | Sep 4, 2015 |
| Small Business California | ** Support | Sep 9, 2015 |
| Snapchat | ** Support | Sep 9, 2015 |
| Tech Freedom | ** Support | Sep 9, 2015 |
| Technet | ** Support | Sep 9, 2015 |
| The Internet Association | ** Support | Sep 9, 2015 |
| The Utility Reform Network | ** Support | Sep 9, 2015 |
| ** Support | Sep 9, 2015 |
SB 178
Page 11
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 178
Author: Leno (D) and Anderson (R), et al.
Amended: 9/4/15
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 3/24/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 39-0, 6/3/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Hancock
ASSEMBLY FLOOR: 57-13, 9/8/15 - See last page for vote
SUBJECT: Privacy: electronic communications: search warrant
SOURCE: American Civil Liberties Union
California Newspaper Publishers Association
DIGEST: This bill creates the California Electronic Communications Privacy Act (CalECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider.
Assembly Amendments :
Revise and clarify the bill’s definition of “specific consent,” and narrow the definition of “imminent” destruction to “destruction” of evidence, as specified;
Revise language describing when a government entity may access electronic device information with respect to specific consent of the authorized possessor of the device, as specified;
Further describe when a government entity may compel the production of or access to electronic communication information from a service provider or any person or entity other than the authorized possessor of the device, as specified;
Further describe when a government entity may access electronic device information by means of physical interaction or electronic communication with the device only, as specified;
Revise and clarify what a warrant for electronic information must comply with, including:
deleting the provision requiring the warrant to be limited to only that information necessary to achieve the objective of the warrant and replacing it with a provision requiring that the warrant describe with particularity the information to be seized;
providing that the warrant require that any information obtained through its execution that is unrelated to the objective of the warrant be sealed and not subject to further review, use, or disclosure without a court order; and
requiring that a court issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law, as specified;
Require that if directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces, as specified;
Clarify a government entity that receives electronic communication information that is voluntarily provided must destroy the information, as specified, with certain exceptions;
Specify that this bill’s provisions do not limit the authority of a government entity to use other specified legal mechanisms to require a service provider to provide subscriber information, as specified;
Provide that the notice required with the warrant or other means authorized by the bill be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information;
Revise notification provisions to the Department of Justice (“DOJ) where there is no identified target of a warrant or emergency request at the time of issuance, as specified;
Delete language in the bill providing that no evidence obtained or retained in violation of the bill’s provisions shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order, and add language providing that parties may move to suppress any electronic information obtained or retained in violation of the law, as specified; and
Explicitly provide that the bill’s provisions do not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
Existing law:
Provides, under the US Constitution, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched an the persons or things to be seized.” (4th Amendment of the U.S. Constitution.)
Provides, under the California Constitution, that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)
Defines a “search warrant” as an order in writing in the name of the People, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Penal Code § 1523.)
Provides that a search warrant may be issued only upon specified grounds. (Penal Code § 1524(a).)
Sets forth procedures for a search warrant issued for records of a foreign corporation that provides electronic communication services or remote computing services to the general public, where those records would reveal the identity of the customers using services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications. (Penal Code § 154.2)
Provides that a provider of electronic communication or remote computing service shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to a customer of that service and types of services the subscriber or customer utilized when the governmental entity is granted a search warrant. (Penal Code § 1524.3(a))
Provides that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days which shall be extended for an additional 90-day upon a renewed request by the peace officer. (Penal Code § 1524.3(d))
Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things and the place to be searched. (Penal Code § 1525.)
Authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)
This bill:
Prohibits a government entity from:
Compelling the production of or access to electronic communication information from a service provider;
Compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; and
Accessing electronic device information by means of physical interaction or electronic communication with the device, although voluntary disclosure to a government entity is permitted.
Permits a government entity to compel the production of or access to electronic communication information subject from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to existing state law, as specified.
Permits a government entity to access electronic device information by means of physical interaction or electronic communication with the device only as follows:
Pursuant to a warrant;
Pursuant to a wiretap order;
With the specific consent of the authorized possessor of the device;
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information;
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device; and
If the device is seized from an inmate's possession or found in an area of a correctional facility where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor, except as otherwise provided by state or federal law.
Requires any warrant for electronic information to comply with the following:
The warrant shall describe with particularity the information to be seized, including by specifying the time periods covered, and as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought;
The warrant shall require that any obtained information unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure unless a court issues an order that there is probable cause to believe that the information is relevant to an active investigation, or is otherwise required by state or federal law; and
The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. Warrants directed to a service provider must be accompanied by an order to verify the authenticity of the electronic information produced, as specified.
When issuing any warrant for electronic information, or upon the petition from the target or recipient of the warrant, a court may, at its discretion, do any or all of the following:
Appoint a special master, who is charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after termination of current or related investigations.
Authorizes a service provider to voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
Requires a government entity that receives electronic communication information voluntarily provided by a service provider to destroy that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient, obtains a court order, or the information is retained for the investigation of child pornography and related crimes, as specified.
Requires a government entity that obtains electronic information pursuant to an emergency to seek an authorizing warrant or order, or an approval motion, within three days after obtaining the electronic information, from the appropriate court, as specified.
Declares that certain of these provisions (#1 through #8) do not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication;
Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity; or,
Require a service provider to provide subscriber information.
Requires a government entity that executes a warrant or obtains electronic information in an emergency pursuant to these provisions to serve or deliver a notice, as specified, to the identified targets stating that information about the target has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought, including a copy of the warrant, or a written statement setting forth facts giving rise to the emergency.
Authorizes the government entity, when a search warrant is sought or electronic information obtained under emergency circumstances, to submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. Further requires the court to issue the order if the court determines that there is reason to believe that notification may have an adverse result, not to exceed 90 days, and the court may grant extensions of the delay of up to 90 days each, as specified.
Requires, upon expiration of the period of delay of the notification, the government entity to serve or deliver to the identified targets of the warrant a document that includes the information required in 10 above, as well as a copy of all electronic information obtained or a summary of that information, and a statement of the grounds for the court’s determination to grant a delay in notifying the target, as specified.
Provides that if there is no identified target of a warrant or emergency request at the time of issuance, the government entity shall submit to the DOJ within three days of the execution of the warrant or issuance of the request all of the information required in 10 above. If an order delaying notice is obtained, the government entity shall submit to DOJ upon the expiration of the period of delay of the notification the information required in 12 above. DOJ shall publish those reports on its web site within 90 days of receipt, and may redact names or other personal identifying information from the reports.
Declares that nothing in these provisions shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information, except as provided.
Permits any person in a trial, hearing, or proceeding to move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter, as specified.
Authorizes the Attorney General to commence a civil action to compel any government entity to comply with these provisions.
Authorizes an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with these provisions, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process, to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
Declares that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to these provisions.
Defines the terms "adverse result," "authorized possessor," "electronic communication," "electronic communication information," "electronic communication service," "electronic device," "electronic device information," "electronic information," "government entity," "service provider," "specific consent," and "subscriber information."
For a full discussion of this bill please see the Senate Public Safety Committee analysis.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee:
Ongoing annual General Fund costs to [DOJ] of approximately $300,000 to research and provide notices to identified targets; unknown, though likely substantial, ongoing annual General Fund costs to [DOJ] for researching and completing reports for investigations with no identified targets, and posting local agency reports to its website.
Unknown ongoing annual costs for local law enforcement agencies for providing notices and producing investigation reports for [DOJ] publication. Though this bill is not keyed a local mandate, there could be substantial state mandated reimbursement of local costs.
American Civil Liberties Union (co-source)
California Newspaper Publishers Association (co-source)
Adobe Inc.
Airbnb
American Library Association
Apple Inc.
Asian Americans Advancing Justice
Bay Area Council
California Chamber of Commerce
California Attorneys for Criminal Justice
California Public Defenders Association
Center for Democracy and Technology
Center for Media Justice
Centro Legal de la Raza
Citizens for Criminal Justice Reform
Civil Justice Association of California
Color of Change
Consumer Action
Consumer Federation
Council on American-Islamic Relations
Dropbox
Electronic Frontier Foundation
Engine
Foursquare
Internet Archive
Legal Services for Prisoners With Children
Media Alliance
Microsoft
Mozilla
NameCheap
National Center for Lesbian Rights
New America: Open Technology Institute
Privacy Rights Clearinghouse
Restore the 4th
San Diego Police Officers Association
Small Business California
Snapchat
TechNet
Tech Freedom
The Internet Association
The Utility Reform Network
California Correctional Peace Officers Association
California State Lodge, Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Protect.org
Sacramento County Deputy Sheriffs’ Association
ASSEMBLY FLOOR: 57-13, 9/8/15
AYES: Achadjian, Travis Allen, Bigelow, Bloom, Bonilla, Bonta, Brown, Burke, Campos, Chang, Chau, Chiu, Chu, Cooley, Dababneh, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez, Gordon, Grove, Hadley, Harper, Roger Hernández, Holden, Jones, Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson, Quirk, Rendon, Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Weber, Wilk, Wood, Atkins
NOES: Baker, Brough, Cooper, Dahle, Frazier, Gray, Irwin, Linder, Medina, Perea, Ridley-Thomas, Waldron, Williams
NO VOTE RECORDED: Alejo, Calderon, Chávez, Daly, Beth Gaines, Gallagher, Gipson, Kim, O'Donnell, Salas
Prepared by: Mary Kennedy and Alison Anderson / PUB. S. /
9/9/15 9:41:33
**** END ****
SB 178
Page 5
SENATE THIRD READING
SB 178
(Leno and Anderson)
As Amended September 4, 2015
2/3 vote
SENATE VOTE: 39-0
Committee |
Votes |
Ayes |
Noes |
Privacy |
9-0 |
Gatto, Calderon, Chang, Chau, Cooper, Dababneh, Dahle, Gordon, Low |
|
Public Safety |
5-0 |
Quirk, Jones-Sawyer, Lopez, Low, Santiago |
|
Appropriations |
15-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Weber, Wood |
|
SUMMARY: Creates the California Electronic Communications Privacy Act (CalECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. Specifically, this bill:
Prohibits a government entity from:
Compelling the production of or access to electronic communication information from a service provider;
Compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; and
Accessing electronic device information by means of physical interaction or electronic communication with the device, although voluntary disclosure to a government entity is permitted.
Permits a government entity to compel the production of or access to electronic communication information subject from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to existing state law, as specified.
Permits a government entity to access electronic device information by means of physical interaction or electronic communication with the device only as follows:
Pursuant to a warrant;
Pursuant to a wiretap order;
With the specific consent of the authorized possessor of the device;
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information; and
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
If the device is seized from an inmate's possession or found in an area of a correctional facility where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor, except as otherwise provided by state or federal law.
Requires any warrant for electronic information to comply with the following:
The warrant shall describe with particularity the information to be seized, including by specifying the time periods covered, and as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
The warrant shall require that any obtained information unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure unless a court issues an order that there is probable cause to believe that the information is relevant to an active investigation, or is otherwise required by state or federal law.
The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. Warrants directed to a service provider must be accompanied by an order to verify the authenticity of the electronic information produced, as specified.
When issuing any warrant for electronic information, or upon the petition from the target or recipient of the warrant, a court may, at its discretion, do any or all of the following:
Appoint a special master, who is charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after termination of current or related investigations.
Authorizes a service provider to voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
Requires a government entity that receives electronic communication information voluntarily provided by a service provider to destroy that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient, obtains a court order, or the information is retained for the investigation of child pornography and related crimes, as specified.
Requires a government entity that obtains electronic information pursuant to an emergency to seek an authorizing warrant or order, or an approval motion, within three days after obtaining the electronic information, from the appropriate court, as specified.
Declares that certain of these provisions (#1 through #8) do not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication;
Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity; or,
Require a service provider to provide subscriber information.
Requires a government entity that executes a warrant or obtains electronic information in an emergency pursuant to these provisions to serve or deliver a notice, as specified, to the identified targets stating that information about the target has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought, including a copy of the warrant, or a written statement setting forth facts giving rise to the emergency.
Authorizes the government entity, when a search warrant is sought or electronic information obtained under emergency circumstances, to submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. Further requires the court to issue the order if the court determines that there is reason to believe that notification may have an adverse result, not to exceed 90 days, and the court may grant extensions of the delay of up to 90 days each, as specified.
Requires, upon expiration of the period of delay of the notification, the government entity to serve or deliver to the identified targets of the warrant a document that includes the information required in 10 above, as well as a copy of all electronic information obtained or a summary of that information, and a statement of the grounds for the court’s determination to grant a delay in notifying the target, as specified.
Provides that if there is no identified target of a warrant or emergency request at the time of issuance, the government entity shall submit to the Department of Justice (Department) within three days of the execution of the warrant or issuance of the request all of the information required in 10 above. If an order delaying notice is obtained, the government entity shall submit to the Department upon the expiration of the period of delay of the notification the information required in 12 above. The Department shall publish those reports on its web site within 90 days of receipt, and may redact names or other personal identifying information from the reports.
Declares that nothing in these provisions shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information, except as provided.
Permits any person in a trial, hearing, or proceeding to move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter, as specified.
Authorizes the Attorney General to commence a civil action to compel any government entity to comply with these provisions.
Authorizes an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with these provisions, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process, to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
Declares that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to these provisions.
Defines the terms "adverse result," "authorized possessor," "electronic communication," "electronic communication information," "electronic communication service," "electronic device," "electronic device information," "electronic information," "government entity," "service provider," "specific consent," and "subscriber information."
FISCAL EFFECT: According to the Assembly Appropriations Committee:
1) Ongoing annual General Fund costs to [the Department] of approximately $300,000 to research and provide notices to identified targets; unknown, though likely substantial, ongoing annual General Fund costs to [the Department] for researching and completing reports for investigations with no identified targets, and posting local agency reports to its website.
2) Unknown ongoing annual costs for local law enforcement agencies for providing notices and producing investigation reports for [Department] publication. Though this bill is not keyed a local mandate, there could be substantial state mandated reimbursement of local costs.
COMMENTS: This bill is intended to codify, expand and harmonize existing case law and current statutes to generally require law enforcement entities to obtain a search warrant before accessing data (or metadata) on an electronic device or from an online service provider. This bill is co-sponsored by the Electronic Frontier Foundation and the California Newspaper Publishers Association.
According to the author, the federal law governing legal search and seizure in criminal investigations "has not been meaningfully updated to account for modern technology." As a result, the author and supporters believe that existing law is insufficient to protect all forms of electronic communications and their metadata, such personal emails stored on a company's servers or mobile phone location data held by carriers. Such information is in great demand from law enforcement, according to supporters, with warrantless demands by government agencies for personal information having increased substantially in recent years.
This bill aims to codify and strengthen privacy protections under the California Constitution in a number of ways. First, it requires a demonstration of probable cause to obtain electronic communications information from a third party service provider, which better protects vital communications technology like smartphones and the information they contain. It also applies the probable cause requirement to past electronic communications, regardless of their age, which is an improvement over federal law. This bill also guarantees that geolocation information is protected by the same standard, and also protects some forms of metadata. The end goal, according to the author, is to create a "clear, uniform warrant rule for California law enforcement access to electronic information."
Recent amendments include a clarification of what constitutes "specific consent" in the voluntary sharing of information so as not to disrupt child pornography investigations, a clarification of the right to suppress evidence obtained in violation of the Fourth Amendment, and elaboration of the requirements for a warrant (including the sealing of unrelated information and verification of authenticity by service providers).
The California Constitution provides for a "Right to Truth-in-Evidence" as a result of the passage of the Victim's Bill of Rights Act (California Proposition 8, 1982). Because this bill would permit the suppression of evidence obtained or retained in violation of this bill's provisions, it will require a two-thirds vote for passage on the Assembly Floor.
Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200 FN: 0002170
SB 178
Page 5
SENATE THIRD READING
SB 178
(Leno and Anderson)
As Amended August 28, 2015
2/3 vote
SENATE VOTE: 39-0
Committee |
Votes |
Ayes |
Noes |
Privacy |
9-0 |
Gatto, Calderon, Chang, Chau, Cooper, Dababneh, Dahle, Gordon, Low |
|
Public Safety |
5-0 |
Quirk, Jones-Sawyer, Lopez, Low, Santiago |
|
Appropriations |
15-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Weber, Wood |
|
SUMMARY: Creates the California Electronic Communications Privacy Act (CalECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. Specifically, this bill:
Prohibits a government entity from:
Compelling the production of or access to electronic communication information from a service provider;
Compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; and
Accessing electronic device information by means of physical interaction or electronic communication with the device, although voluntary disclosure to a government entity is permitted.
Permits a government entity to compel the production of or access to electronic communication information subject from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to a warrant, wiretap order, or order for electronic reader records.
Permits a government entity to access electronic device information by means of physical interaction or electronic communication with the device only as follows:
Pursuant to a warrant;
Pursuant to a wiretap order;
With the specific consent of the authorized possessor of the device;
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information; and
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
Requires any warrant for electronic information to comply with the following:
The warrant shall describe with particularity the information to be seized, including by specifying the time periods covered, and as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
The warrant shall require that any obtained information unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure unless a court issues an order that there is probable cause to believe that the information is relevant to an active investigation, or is otherwise required by state or federal law.
The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. Warrants directed to a service provider must be accompanied by an order to verify the authenticity of the electronic information produced, as specified.
When issuing any warrant for electronic information, or upon the petition from the target or recipient of the warrant, a court may, at its discretion, do any or all of the following:
Appoint a special master, who is charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after termination of current or related investigations.
Authorizes a service provider to voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
Requires a government entity that receives electronic communication information voluntarily provided by a service provider to destroy that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient, obtains a court order, or the information is retained for the investigation of child pornography and related crimes, as specified.
Requires a government entity that obtains electronic information pursuant to an emergency to seek an authorizing warrant or order, or an approval motion, within three days after obtaining the electronic information, from the appropriate court, as specified.
Declares that certain of these provisions [1) through 8) above] do not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication;
Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity; or,
Require a service provider to provide subscriber information.
Requires a government entity that executes a warrant or obtains electronic information in an emergency pursuant to these provisions to serve or deliver a notice, as specified, to the identified targets stating that information about the target has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought, including a copy of the warrant, or a written statement setting forth facts giving rise to the emergency.
Authorizes the government entity, when a search warrant is sought or electronic information obtained under emergency circumstances, to submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. Further requires the court to issue the order if the court determines that there is reason to believe that notification may have an adverse result, not to exceed 90 days, and the court may grant extensions of the delay of up to 90 days each, as specified.
Requires, upon expiration of the period of delay of the notification, the government entity to serve or deliver to the identified targets of the warrant a document that includes the information required in 10) above, as well as a copy of all electronic information obtained or a summary of that information, and a statement of the grounds for the court’s determination to grant a delay in notifying the target, as specified.
Provides that if there is no identified target of a warrant or emergency request at the time of issuance, the government entity shall submit to the Department of Justice (Department) within three days of the execution of the warrant or issuance of the request all of the information required in 10) above. If an order delaying notice is obtained, the government entity shall submit to the Department upon the expiration of the period of delay of the notification the information required in 12) above. The Department shall publish all those reports on its Web site within 90 days of receipt.
Declares that nothing in these provisions shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information, except as provided.
Permits any person in a trial, hearing, or proceeding to move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter, as specified.
Authorizes the Attorney General to commence a civil action to compel any government entity to comply with these provisions.
Authorizes an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with these provisions, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process, to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
Declares that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to these provisions.
Defines the terms "adverse result," "authorized possessor," "electronic communication," "electronic communication information," "electronic communication service," "electronic device," "electronic device information," "electronic information," "government entity," "service provider," "specific consent," and "subscriber information."
FISCAL EFFECT: According to the Assembly Appropriations Committee:
1) Ongoing annual General Fund costs to [the Department] of approximately $300,000 to research and provide notices to identified targets; unknown, though likely substantial, ongoing annual General Fund costs to [the Department] for researching and completing reports for investigations with no identified targets, and posting local agency reports to its Web site.
2) Unknown ongoing annual costs for local law enforcement agencies for providing notices and producing investigation reports for [Department] publication. Though this bill is not keyed a local mandate, there could be substantial state mandated reimbursement of local costs.
COMMENTS: This bill is intended to codify, expand and harmonize existing case law and current statutes to generally require law enforcement entities to obtain a search warrant before accessing data (or metadata) on an electronic device or from an online service provider. This bill is co-sponsored by the Electronic Frontier Foundation and the California Newspaper Publishers Association.
According to the author, the federal law governing legal search and seizure in criminal investigations "has not been meaningfully updated to account for modern technology." As a result, the author and supporters believe that existing law is insufficient to protect all forms of electronic communications and their metadata, such personal emails stored on a company's servers or mobile phone location data held by carriers. Such information is in great demand from law enforcement, according to supporters, with warrantless demands by government agencies for personal information having increased substantially in recent years.
This bill aims to codify and strengthen privacy protections under the California Constitution in a number of ways. First, it requires a demonstration of probable cause to obtain electronic communications information from a third party service provider, which better protects vital communications technology like smartphones and the information they contain. It also applies the probable cause requirement to past electronic communications, regardless of their age, which is an improvement over federal law. This bill also guarantees that geolocation information is protected by the same standard, and also protects some forms of metadata. The end goal, according to the author, is to create a "clear, uniform warrant rule for California law enforcement access to electronic information."
Recent amendments include a clarification of what constitutes "specific consent" in the voluntary sharing of information so as not to disrupt child pornography investigations, a clarification of the right to suppress evidence obtained in violation of the Fourth Amendment, and elaboration of the requirements for a warrant (including the sealing of unrelated information and verification of authenticity by service providers).
The California Constitution provides for a "Right to Truth-in-Evidence" as a result of the passage of the Victim's Bill of Rights Act (California Proposition 8, 1982). Because this bill would permit the suppression of evidence obtained or retained in violation of this bill's provisions, it will require a two-thirds vote for passage on the Assembly Floor.
Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200 FN: 0001761
Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 178
(Leno) – As Amended August 17, 2015
Policy Committee: |
Privacy and Consumer Protection |
Vote: |
9 - 0 |
|
Public Safety |
|
5 - 0 |
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill prohibits government entities from compelling the production of, or access to, electronic communication information or electronic device information without a search warrant or wiretap order, except under certain specified emergency situations.
The bill requires government entities executing a warrant, or requesting information in an emergency situation, to provide contemporaneous notice to the identified targets or seek a court order delaying notification for up to 90 days if notification would adversely affect an investigation. If the warrant or emergency request does not identify a target, the bill requires government entities to submit a report on the investigation to the Department of Justice (DOJ) within three days of executing the warrant, and requires DOJ to publish the report on its website.
The bill further requires government agencies that have received electronic communication information voluntarily to destroy that information within 90 days unless it obtains the consent of the information provider or obtains a court order authorizing its retention.
FISCAL EFFECT:
1) Ongoing annual General Fund costs to DOJ of approximately $300,000 to research and provide notices to identified targets; unknown, though likely substantial, ongoing annual General Fund costs to DOJ for researching and completing reports for investigations with no identified targets, and posting local agency reports to its website.
2) Unknown ongoing annual costs for local law enforcement agencies for providing notices and producing investigation reports for DOJ publication. Though this bill is not keyed a local mandate, there could be substantial state mandated reimbursement of local costs.
COMMENTS:
1) Purpose. According to the author, while communication technology has advanced dramatically, state privacy law has remained largely unchanged for many years. Californians use modern communication technology to connect, work, and learn, and the state's leading technology companies rely on consumer confidence in these services to help drive their businesses and facilitate economic activity. The author believes consumers are increasingly concerned about warrantless government access to their mobile devices, email, text messages, location information, and other metadata, and that polls indicate consumers believe current legal protections are inadequate.
The author contends law enforcement increasingly relies on digital communication and other information to conduct investigations, claiming Google has experienced a 250% increase in government demands for information over the past 5 years, while AT&T and Verizon have experienced similar increases in demands for location information, many of which were without warrant. The author believes these and similar companies are concerned about a loss of consumer trust and are in need of a consistent statewide standard.
2) Apple II Laws in an iPhone 6 World. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA), the current federal statutory framework for surveilling electronic communication. According to Richard Salgado, the Director for Law Enforcement and Information Security at Google, in testimony he delivered to the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, the ECPA was foresighted for its time, but today frustrates users' reasonable expectations of privacy. Salgado and others contend users expect the same 4th Amendment protections for information stored online as for information stored on paper in a mailbox or at home.
In US v Jones (2012), the US Supreme Court upheld 4th Amendment privacy rights against warrantless surveillance of a person's location via a GPS device. In a concurring opinion, Justice Alito prompted lawmakers to update search and seizure laws to account for technological changes, believing legislatures are best placed to balance privacy and public safety interests. The author contends 16 states have enacted additional privacy safeguards, with 10 protecting location information and 6 protecting electronic communication content. Similarly, the White House recently called on lawmakers to "ensure the standard of protection for online, digital content is consistent with that afforded in the physical world."
3) Private Sector Policies. Several technology companies in California already require a search warrant before disclosing the contents of communications. According to recent press reports, Google, Microsoft, Yahoo!, and Facebook all require warrants in order to provide the contents of emails and messages to government entities, a standard that exceeds current US law, but which the companies believe is supported by the 4th Amendment.
4) Opposition. According to the California State Sheriffs Association, SB 178 conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and undermines investigations that are otherwise compliant with the 4th Amendment. The association contends existing law already requires prosecutors to undergo judicial review before obtaining any electronic information, and the bill's other requirements will hinder law enforcement investigations.
SB 467 (Leno) of 2013 was similar to this bill and vetoed by the Governor. In his veto message, the Governor argued federal law already requires a warrant, subpoena, or court order to access electronic communication in most cases, and the notice requirements of that bill could impede ongoing criminal investigations.
Analysis Prepared by: Joel Tashjian / APPR. / (916) 319-2081
SB 178
Page 14
Date of Hearing: July 14, 2015
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB 178
(Leno) – As Amended July 7, 2015
SUMMARY:
Prohibits a government entity from compelling the production of, or
access to, electronic-communication information or electronic-device
information without a search warrant or wiretap order, except under
specified emergency situations. Specifically, this bill:
Prohibits a government entity from:
Compelling the production of or access to electronic communication information from a service provider;
Compelling the production of or access to electronic device information from any person or entity except the authorized possessor of the device; and
Accessing electronic device information by means of physical interaction or electronic communication with the device.
Permits a government entity to compel the production of, or access to, electronic information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device subject to a warrant, a wiretap order, and an order for electronic reader records, as specified.
Permits a government entity to access electronic device information by means of physical interaction or electronic communication with the device only as follows:
Pursuant to a wiretap order or a search warrant, as specified;
With the consent of the authorized possessor of the device, including when a government entity is the intended recipient of an electronic communication initiated by the authorized possessor of the device;
With the consent of the owner of the device, only when the device has been reported as lost or stolen;
If the government entity has a good-faith belief that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information; and,
If the government entity has a good-faith belief that the device is lost, stolen, or abandoned, but the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
Requires a warrant for electronic information to comply with the following:
The warrant must be limited to only that information necessary to achieve the warrant's objective, including by specifying the time periods covered, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
The warrant must comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants.
Gives the court discretion to do any of the following when issuing a warrant for electronic information, or upon the petition from the target or recipient of the warrant:
Appoint a special master charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed; and,
Require that any information obtained through the execution of the warrant or order that is unrelated to the warrant's objective be destroyed as soon as feasible after that determination is made.
Authorizes, but does not require, a service provider to disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
Requires a government entity that receives electronic communication information which is voluntarily provided by a service provider to destroy that information within 90 days unless the entity has or obtains the consent of the sender or recipient, or obtains a court order authorizing its retention.
Requires a court to issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case retention shall be authorized only for as long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
Requires a government entity that obtains electronic information pursuant to an emergency involving danger of death or serious injury to a person, to seek approval, within three days after obtaining the electronic information, from the appropriate court, as specified.
Declares that these provisions do not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication; or,
Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
Requires a government entity that executes a warrant in an emergency pursuant to these provisions to contemporaneously serve or deliver a notice to the identified targets that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought, including a copy of the warrant or a written statement setting forth facts giving rise to the emergency.
Authorizes the government entity, when a warrant is sought, to submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court must issue the order if it determines that there is reason to believe that notification may have an adverse result, not to exceed 90 days, but the court may grant extensions of the delay of up to 90 days each.
Requires, upon expiration of the period of delay of the notification, the government entity to serve or deliver to the identified targets of the warrant, a document that includes specified information and a copy of all electronic information obtained or a summary thereof, and a statement of the grounds for the court's determination to grant a delay in notifying the individual, as specified.
Requires, if there is no identified target of a warrant, or emergency request or access at the time of its issuance, the government entity to submit to the Department of Justice (DOJ) within three days of the execution of the warrant, a report that states the nature of the government investigation and a copy of the warrant, or a written statement.
Requires the DOJ to publish each report on its Web site within 90 days of receipt.
Declares that nothing in these provisions shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information, except as provided.
Declares that no evidence obtained or retained in violation of these provisions shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order, except as proof of a violation of these provisions.
Authorizes the Attorney General to commence a civil action to compel any government entity to comply with these provisions.
Authorizes an individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with these provisions, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, wiretap order, or other legal process, to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
States that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to these provisions.
Defines the following terms for purposes of this Act:
"Adverse result" means danger to the life or physical safety of an individual, flight from prosecution, imminent destruction of or tampering with evidence, intimidation of potential witnesses, or serious jeopardy to an investigation or undue delay of a trial.
"Authorized possessor" is the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.
"Electronic communication" means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
"Electronic communication information" means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. It does not include subscriber information as defined in this chapter.
"Electronic communication service" means a service that provides to its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications, or stores electronic communication information.
"Electronic device" is a device that stores, generates, or transmits information in electronic form.
"Electronic device information" means any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.
"Electronic information" is electronic communication information or electronic device information.
"Government entity" is a department or agency of the state or a political subdivision thereof, or an individual acting for, or on behalf of, the state or a political subdivision thereof.
"Service provider" is a person or entity offering an electronic communication service.
"Specific consent" means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient of an electronic communication.
"Subscriber information" means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.
EXISTING FEDERAL LAW: Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.)
EXISTING STATE LAW:
Prohibits exclusion of relevant evidence in a criminal proceeding on the ground that the evidence was obtained unlawfully, unless the relevant evidence must be excluded because it was obtained in violation of the federal Constitution's Fourth Amendment. (Cal. Const., art. I, § 28(f)(2) (Right to Truth-in-Evidence provision).)
Defines a "search warrant" as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Pen. Code, § 1523.)
Provides the specific grounds upon which a search warrant may be issued, including when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony. (Pen. Code, § 1524.)
Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. (Pen. Code, § 1525.)
Requires a magistrate to issue a search warrant if he or she is satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1528, subd. (a).)
Requires a provider of electronic communication service or remote computing service to disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized, when the governmental entity is granted a search warrant. (Pen. Code, § 1524.3, subd. (a).)
States that a governmental entity receiving subscriber records or information is not required to provide notice to a subscriber or customer of the warrant. (Pen. Code, § 1524.3, subd. (b).)
Authorizes a court issuing a search warrant, on a motion made promptly by the service provider, to quash or modify the warrant if the information or records requested are unusually voluminous in nature or compliance with the warrant otherwise would cause an undue burden on the provider. (Pen. Code, § 1524.3(c).)
Requires a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, to take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the peace officer. (Pen. Code, § 1524.3, subd. (d).)
Specifies that no cause of action shall be brought against any provider, its officers, employees, or agents for providing information, facilities, or assistance in good faith compliance with a search warrant. (Pen. Code, § 1524.3, subd. (e).)
Provides for a process for a search warrant for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public, where the records would reveal the identity of the customers using those services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent or from those customers, or the content of those communications. (Pen. Code, § 1524.2.)
FISCAL EFFECT: Unknown
COMMENTS:
Author's Statement: According to the author, "Californians are guaranteed robust constitutional rights to privacy and free speech and the Legislature has long been a leader in protecting individual privacy. However, the emergence of new technology has left California's statutory protections behind, and currently, a handwritten letter in a citizen's mailbox enjoys more robust protection from warrantless surveillance than an email in someone's inbox. This is nonsensical, and SB 178, the California Electronic Communications Privacy Act (CalECPA) will restore needed protection against warrantless government access to mobile devices, email, text messages, digital documents, metadata, and location information. CalECPA safeguards the electronic information of California residents and supports innovation in the digital economy by updating state privacy law to match our expanding use of digital information.
"California residents use technology every day to connect, communicate, work and learn. Our state's leading technology companies rely on consumer confidence in these services to help power the California economy. But consumers are increasingly concerned about warrantless government access to their digital information, and for good reason. While technology has advanced exponentially, California privacy law has remained largely unchanged. Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access emails, digital documents, and text messages without proper judicial oversight.
"For example:
Google has had a 250% jump in government demands in just the past five years.
AT&T received over 64,000 demands for location information in 2014, nearly 70% increase in a single year.
Verizon received over 15,000 demands for location data in the first half of 2014, only 1/3 with a warrant.
Twitter and Tumblr both received more demands from California law enforcement than any other state.
"As a result, public confidence in technology has been badly
damaged. Polls consistently show that consumers believe that their
electronic information is sensitive and that current law does not
provide adequate protection from government monitoring. Companies in
turn are increasingly concerned about the loss of consumer trust and
its business impact, and are in need of a consistent statewide
standard for law enforcement requests.
"Courts and
legislatures around the country are recognizing the need to update
privacy laws for the digital age. In two recent decisions, United
States v. Jones and Riley v. California, the U.S. Supreme Court
upheld Fourth Amendment privacy rights against warrantless government
surveillance. Justice Alito in Jones also prompted lawmakers to take
action, noting that in circumstances involving dramatic technological
change 'a legislative body is well suited to gauge changing public
attitudes, to draw detailed lines, and to balance privacy and public
safety in a comprehensive way.'
"Sixteen state
legislatures throughout the country have already heeded Justice
Alito's call and enacted new legislation, with 10 states safeguarding
location information and 6 states protecting electronic
communications content. The White House has called on lawmakers to
update the law to 'ensure the standard of protection for online,
digital content is consistent with that afforded in the physical
world.' A federal bill on the subject garnered over 270 bipartisan
co-sponsors in the United States Congress. California has now fallen
behind states as diverse as Texas, Maine, and Utah that have already
enacted legislation to safeguard rights, spur innovation, and support
public safety.
"SB 178 heeds the call in Jones for
the legislature to balance privacy and public safety, and will spur
innovation by updating state privacy law to match our expanding use
of digital information. The bill provides:
Appropriate Warrant Protection for Digital Information
Proper Transparency & Oversight
Appropriate Exceptions for Public Safety and emergency situations
"SB 178 will ensure that, in most cases, the police must
obtain a warrant from a judge before accessing a person's private
information, including data from personal electronic devices, email,
digital documents, text messages, and location information.
"The
bill also includes thoughtful exceptions to ensure that law
enforcement can continue to effectively and efficiently protect
public safety in emergency situations.
"Californians
should not have to choose between using new technology and keeping
their personal lives private. The business impacts of eroding public
confidence brought on by unwarranted government monitoring has
prompted California's leading technology companies to partner with
the state's premiere privacy advocates in supporting the enactment of
SB 178, The California Electronic Communications Privacy Act
(CalECPA)."
Fourth Amendment Protections: The Fourth Amendment of the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Section 13, Article I of the California Constitution mirrors the Fourth Amendment of the United States Constitution.
Application of the Fourth Amendment to searches or seizures of electronic information by law enforcement has recently been addressed by the United States Supreme Court in two cases.
In U.S. v. Jones (2012) 132 S.Ct. 945, the Court held that attaching a global positioning system (GPS) device to a person's vehicle to track his or her movements constitutes a search within the meaning of the Fourth Amendment. (Id. at p. 949.) The legal reasoning for this conclusion differed between the Justices. The majority based its decision on common law trespass principals, holding that attaching a GPS device to a vehicle (an "effect") for purposes of data collection constitutes a search because the government physically occupied private property for the purpose of information gathering. (Ibid.)
Jones left open the question of whether law enforcement's collection of geolocation data requires a warrant when there is no physical intrusion, such as when an agency obtains GPS information from a cell phone provider, or when it uses a "StingRay device" that is capable of mimicking a wireless carrier cell tower in order to force all nearby mobile phones and other cellular data devices to connect to it in order to extract data. (See e.g. http://www.news10.net/story/news/investigations/2014/06/23/is-sacramento-county-sheriff-dept-using-stingray-to-track-collect-data/11296461/.)
Significantly for purposes of this bill, Justice Sotomayor's concurring opinion in Jones, supra, asked whether technological innovations make it "necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." (Id. at p. 957.) Justice Sotomayor proposed that "[t]his approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers." (Ibid.) She suggested that people do not "reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on." (Id. at 956.)
More recently, in Riley v. California (2014) 134 S. Ct. 2473, the Unites States Supreme Court unanimously held that police must generally obtain a warrant before searching digital information on arrestee's cell phone. In so doing, the Court recognized that the search of digital data has serious implications for an individual's privacy. The court observed that cell phones are both qualitatively and quantitatively different than other objects which might be found on an arrestee's person. (Id. at p. 2489.) The court found the immense storage capacity of cell phones significant and noted that this feature has several privacy implications:
First, a cell phone collects in one place may distinct types of
information—an address, a note, a prescription, a bank statement, a
video—that reveal much more in combination than any isolated
record. Second, a cell phone's capacity allows even just one type of
information to convey far more than previously possible. The sum of
an individual's private life can be reconstructed through a thousand
photographs labeled with dates, locations, and descriptions; …
Third, the data on a phone can date back to the purchase of the
phone, or even earlier. (Ibid.)
As to the qualitative differences between a cell phone and physical
records, the court stated:
"An Internet search and browsing history, for example, can be
found on an Internet-enabled phone and could reveal an individual's
private interests or concerns … Data on a cell phone can also
reveal where a person has been. Historic location information is a
standard feature on many smart phones and can reconstruct someone's
specific movements down to the minute, not only around town but also
within a particular building. (See United States v. Jones 565
U.S. __, 132 S.Ct. 945, (2012) (Sotomayor, J. concurring) ("GPS
monitoring generates a precise comprehensive record of a person's
public movements that reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations.")
(Riley v. California, supra, 134 S.Ct. at p. 2490.)
Finally, the Court recognized that "cloud computing" poses
additional complications when considering privacy concerns because
the data viewed may not in fact be stored on the device itself. (Id.
at p. 2491.)
The Court concluded, "Modern cell phones
are not just another technological convenience. With all they
contain and all they may reveal, they hold for many Americans 'the
privacies of life.' The fact that technology now allows an
individual to carry such information in his hand does not make the
information any less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is accordingly
simple—get a warrant." (Id. at p. 2495, quotation
omitted.)
This bill addresses these privacy concerns by
requiring a valid search warrant in order to obtain the content of
electronic communications.
Current Privacy Practices of Electronic Communication Services Providers: Some of the biggest technology companies in California already require a search warrant before disclosing the contents of electronic communications. According to a recent article, "Google, Microsoft, Yahoo, and Facebook all say that they require full warrants in order to provide the contents of emails and messages to government entities . . . That's a higher standard than currently required by US law, which as of now is largely defined by the Electronic Communications Privacy Act (ECPA). The ECPA was passed in 1986 and sets a relatively low bar for accessing private data." These companies reported that they all have their own "policies that require a warrant before providing the content of messages" and that the "fourth amendment backs them up." (Bohn, "Google, Microsoft, Yahoo, and Facebook say they require warrants to give over private content," The Verge (Jan. 26, 2013), < http://www.theverge.com/2013/1/26/3917684/google-microsoft-yahoo-facebook-require-warrants-private-content>.)
During a hearing held by the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, Richard Salgado, the Director for Law Enforcement and Information Security at Google provided the following testimony regarding the need to update the ECPA:
"ECPA was enacted in 1986 — well before the web as we know it today even existed. The ways in which people use the Internet in 2013 are dramatically different than 25 years ago.
"In 1986, there was no generally available way to browse the World Wide Web, and commercial email had yet to be offered to the general public. Only 340,000 Americans subscribed to cell phone service, and not one of them was able to send a text message, surf the web, or download applications. To the extent that email was used, users had to download messages from a remote server onto their personal computer, holding and storing data was expensive, and storage devices were limited by technology and size.
"In 2013, hundreds of millions of Americans use the web every day — to work, learn, connect with friends and family, entertain themselves, and more. Data transfer rates are significantly faster than when ECPA became law — making it possible to share richer data, collaborate with many people, and perform more complicated tasks in a fraction of the time. Video sharing sites, video conferencing applications, search engines, and social networks — all the stuff of science fiction in 1986 — are now commonplace. Many of these services are free.
"The distinctions that ECPA made in 1986 were foresighted in light of technology at the time. But in 2013, ECPA frustrates users’ reasonable expectations of privacy. Users expect, as they should, that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize documents stored in a desk drawer. There is no compelling policy or legal rationale for this dichotomy." (Testimony of Richard Salgado, Director, Law Enforcement and Information Security, Google Inc., House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations Hearing on “ECPA Part 1: Lawful Access to Stored Content” (March 19, 2013).)
Governor's Veto Message: SB 467 (Leno) of the 2013-2014 Legislative session, was similar to this bill. It required a search warrant when a governmental agency seeks to obtain the contents of a wire or electronic communication that is stored, held or maintained by a provider of electronic communication services or remote computing services. SB 467 was vetoed.
In his veto message, the Governor said, "This bill requires law enforcement agencies to obtain a search warrant when seeking access to electronic communications. Federal law currently requires a search warrant, subpoena or court order to access this kind of information and in the vast majority of cases, law enforcement agencies obtain a search warrant.
"The bill, however, imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations. I do not think that is wise."
Argument in Support: According to the Electronic Frontier Foundation, a co-sponsor of this bill, "California has a long and cherished history when it comes to preserving its citizen's privacy. In 1972, Article I of the California state constitution was amended to include privacy amongst the “inalienable” rights of the people of the state. As the California Supreme Court noted in White v. Davis, 13 Cal.3d 757 (1975), this amendment was aimed specifically at “the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society.” As a result, the strong privacy rights contained in the state constitution provide greater protection than the Fourth Amendment to the U.S. Constitution. More than 35 years ago, the California Supreme Court in People v. Blair, 25 Cal.3d 640 (1979), disagreed with the U.S. Supreme Court and recognized that a person’s telephone calling history- a primitive form of metadata – was entitled to an expectation of privacy under Article I, section 13 of the state constitution because this information provides a “virtual current biography of an in individual.
“Today as the advance of technology – born out of companies and universities located in California – permeate everyday life, it become even more important to protect the privacy rights enshrined in California state constitution. Of course digital data stored on electronic devices or online provided law enforcement with a powerful investigative tool for solving crime, a tool it should be permitted to use to make Californians safer and solve crimes. But there must be a balance between security and privacy. That balance has traditionally been struck by requiring law enforcement obtain a search warrant before they can access private information.
“SB 178 brings that balance to the modern, digital world by requiring law enforcement to obtain a search warrant before it can access data on an electronic device or form an online service provider, such as an email provider or social media site.
“While the premise of SB 178 is the strong privacy protections enshrined in the California constitution, even the U.S. Supreme Court is recognizing the need to protect digital data. This past summer, its decision in Riley v. California confirmed that electronic devices like cell phones, and specifically the digital data stored on the phone, differ in both “a quantitative and a qualitative sense” for other physical objects accessible to law enforcement. These devices, and the digital data contained within, is “not just another technological convenience” but, given “all they contain and all they may reveal…hold for many Americans “the privacies of life.” Thus the Supreme Court required police “get a warrant” before searching the data on a cell phone incident to arrest.
“SB 178 follows the spirit of Riley and extends the warrant requirement to a wealth of digital information that reveals personal and sensitive details about who we are, whom we communicate and associate with, and where we’ve been. While law enforcement will still be able to obtain this information and utilize it to solve crimes, SB 178 provides needed oversight by requiring law enforcement obtain a search warrant in order to access this wealth of information. The bill contains reasonable exceptions that allow law enforcement to obtain digital information without a warrant during an emergency.”
Argument in Opposition: According to the California State Sheriffs Association, "This measure has a myriad of problems: it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the Fourth Amendment.
"Much of the national debate around electronic privacy goes to whether the federal statutes governing third party records provide for sufficient protections. While there is a process for some law enforcement to obtain some records via subpoena rather than a search warrant, under existing California law, California prosecutors cannot obtain any electronic information without judicial review. This measure goes beyond the question of judicial review and search warrants, however, and creates barriers that will hinder law enforcement investigations.
"Finally, we are concerned about the breadth of the exclusionary provisions of proposed section 1546.4. Whether evidence should be admitted or not should be based on a motion to suppress under Penal Code section 1538.5 and should be based on violations of the Fourth Amendment. Technical violations of the 'chapter' that do not implicate a person’s right to privacy should not result in the suppression of evidence."
Related Legislation:
AB 39 (Medina) revises the procedure by which a magistrate may issue a search warrant by use of a telephone and facsimile transmission, electronic mail, or computer server. AB 39 was ordered to engrossing and enrolling.
AB 844 (Bloom) Chapter 57, Statutes of 2015, authorizes a foreign corporation and foreign limited liability company to consent to service of process for a search warrant by email or submission to a designated Internet Web portal.
Prior Legislation:
SB 467 (Leno) of the 2013-2014 Legislative Session, would have required a search warrant when a governmental agency seeks to obtain the contents of a wire or electronic communication that is stored, held or maintained by a provider of electronic communication services or remote computing services. SB 467 was vetoed.
SB 1434 (Leno), of the 2011-12 Legislative Session, would have required a government entity to get a search warrant in order to obtain the location information of an electronic device. SB 1434 was vetoed.
SB 914 (Leno), of the 2011-2012 Legislative Session, would have restricted the authority of law enforcement to search portable electronic devices without obtaining a search warrant. SB 914 was vetoed.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil
Liberties Union (Co-Sponsor)
California Newspaper Publishers
Association (Co-Sponsor)
Electronic Frontier Foundation
(Co-Sponsor)
Adobe
Airbnb
Apple Inc.
Asian Law
Caucus
Bay Area Civil Liberties Coalition
California
Attorneys for Criminal Justice
California Civil Liberties
Advocacy
California Correctional Peace Officers
Association
California Immigrant Policy Center
California
Library Association
California Public Defenders
Association
Center for Democracy and Technology
Center for
Media Justice
Citizens for Criminal Justice Reform
Civil
Justice Association of California
ColorOfChange.org
Consumer
Action
Consumer Federation of California
Council on
American-Islamic Relations, California Chapter
Dropbox,
Inc.
Drug Policy Alliance
Ella Baker Center for Human
Rights
Engine
Facebook
Foursquare Labs, Inc.
Google
Internet
Archive
Internet Association
Legal Services for Prisoners
with Children
LinkedIn
Media
Alliance
Mozilla
Namecheap
National Center for Lesbian
Rights
Oakland Privacy Working Group
Open Technology
Institute
Privacy Rights Clearinghouse
Restore the Fourth,
Bay Area Chapter
Small Business California
TechFreedom
The
Utility Reform Network
Twitter Inc.
17 Law School
Professors
One Private Individual
Opposition
California District
Attorneys Association
California Police Chiefs
Association
California State Sheriffs Association
California
Statewide Law Enforcement Association
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744
SB 178
Page 12
Date of Hearing: June 23, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
SB 178
(Leno) – As Amended June 2, 2015
SENATE VOTE: 39-0
SUBJECT: Privacy: electronic communications: search warrant.
SUMMARY: Creates the California Electronic Communications Privacy Act (CalECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. Specifically, this bill:
Prohibits a government entity from:
Compelling the production of or access to electronic communication information from a service provider.
Compelling the production of or access to electronic device information from any person or entity except the authorized possessor of the device.
Accessing electronic device information by means of physical interaction or electronic communication with the device.
Permits a government entity to compel the production of or access to electronic information subject to a warrant or wiretap order, as specified, provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
Permits a government entity to access electronic device information by means of physical interaction or electronic communication with the device only as follows:
In accordance with a wiretap order or in accordance with a search warrant, as specified, provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant.
With the specific consent of the authorized possessor of the device, including when a government entity is the intended recipient of an electronic communication initiated by the authorized possessor of the device.
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
Requires any warrant or wiretap order for electronic information to comply with the following:
The warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered, as appropriate.
The warrant or order shall identify the effective date upon which the warrant or order is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
The warrant or order shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants or wiretap orders.
When issuing any warrant or wiretap order for electronic information, or upon the petition from the target or recipient of the warrant or wiretap order, a court may, at its discretion, do any or all of the following:
Appoint a special master, who is charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after that determination is made.
Authorizes, but does not require, a service provider to disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
Requires a government entity that receives electronic communication information voluntarily provided by a service provider to delete that information within 90 days unless the entity has or obtains the specific consent of the sender or recipient or obtains a court order, as specified.
Requires a government entity that obtains electronic information pursuant to an emergency to seek approval, within three days after obtaining the electronic information, from the appropriate court, as specified.
Declares that certain of these provisions (#1 through #8) do not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication; or,
Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
Requires a government entity that executes a warrant or wiretap in an emergency pursuant to these provisions to contemporaneously serve or deliver a notice to the identified targets that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought, including a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
Requires, if there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity to submit to the Department of Justice (DOJ) within 72 hours a report that states the nature of the government investigation and a copy of the warrant, or order, or a written statement. Further requires the DOJ to publish each report on its website within 90 days of receipt.
Authorizes the government entity, when a wiretap order or search warrant is sought, to submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. Further requires the court to issue the order if the court determines that there is reason to believe that notification may have an adverse result, not to exceed 90 days, and the court may grant extensions of the delay of up to 90 days each, as specified.
Requires, upon expiration of the period of delay of the notification, the government entity to serve or deliver to each individual whose electronic information was acquired, a document that includes the information required in #10 above, as well as a copy of all electronic information obtained or a summary of that information, and a statement of the grounds for the court’s determination to grant a delay in notifying the individual, as specified.
Declares that nothing in these provisions shall prohibit or limit a service provider or any other party from disclosing information about any request or demand for electronic information, except as provided.
Declares that no evidence obtained or retained in violation of these provisions shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order, except as proof of a violation of these provisions.
Authorizes the Attorney General to commence a civil action to compel any government entity to comply with these provisions.
Authorizes an individual whose information is targeted by a warrant, wiretap order, or other legal process that is inconsistent with these provisions, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, wiretap order, or other legal process, to petition the issuing court to void or modify the warrant, wiretap order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
Declares that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, court order, statutory authorization, emergency certification, or wiretap order issued pursuant to these provisions.
Defines the terms "adverse result," "authorized possessor," "electronic communication," "electronic communication information," "electronic communication service," "electronic device," "electronic device information," "electronic information," "government entity," "service provider," "specific consent," and "subscriber information."
EXISTING LAW:
Provides, pursuant to the U.S. Constitution, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched an the persons or things to be seized.” (U.S. Const. amend. IV)
Defines a “search warrant” as an order in writing in the name of the People, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Penal Code (PC) Section 1523)
Sets forth procedures for a search warrant issued for records of a foreign corporation that provides electronic communication services or remote computing services to the general public, where those records would reveal the identity of the customers using services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications. (PC 1524.2)
Provides that a provider of electronic communication or remote computing service shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to a customer of that service and types of services the subscriber or customer utilized when the governmental entity is granted a search warrant. (PC 1524.3(a))
Provides that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days which shall be extended for an additional 90-day upon a renewed request by the peace officer. (PC 1524.3(d))
Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things and the place to be searched. (PC 1525)
Authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (PC 629.50, et seq.)
Provides, pursuant to the California Constitution and attendant case law, that Californians do not forfeit their reasonable expectation of privacy when they share their information with a third party. (Burrows v. Superior Court, 13 Cal.3d 238 (1974) (recognizing expectation of privacy in bank records under California Constitution even though United States v. Miller, 425 U.S. 435 (1976) found none under Fourth Amendment).
FISCAL EFFECT:
According to the Senate Appropriations Committee:
Noticing requirements: Ongoing potentially significant costs to state and local law enforcement agencies for those noticing provisions in the bill that exceed requirements under federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.
Information deletion: Unknown, but potentially significant costs to government entities for the required deletion of information within the specified time period. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
DOJ impact: Significant ongoing costs potentially in excess of $300,000 (General Fund) for resources to meet the noticing requirements of the bill. Minor, absorbable impact to aggregate and post annual reports received to its website.
COMMENTS:
Purpose of this bill. This bill is intended to both codify and expand on existing case law to generally require law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. SB 178 is co-sponsored by the Electronic Frontier Foundation and the California Newspaper Publishers Association.
Author's statement. According to the author's office, "SB 178 updates existing federal and California statutory law for the digital age and codifies federal and state constitutional rights to privacy and free speech by instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information."
"Each of these categories can reveal sensitive information about a Californian’s personal life: her friends and associates, her physical and mental health, her religious and political beliefs, and more. The California Supreme Court has long held that this type of information constitutes a 'virtual current biography' that merits constitutional protection. SB 178 would codify that protection into statute. SB 178 also ensures that proper notice, reporting, and enforcement provisions are also updated and in place for government access to electronic information and to ensure that the law is followed."
What legal requirements and restrictions apply to government searches? As a starting point, the Fourth Amendment to the United State Constitution (and Art. I, Sec. 13 of the California Constitution) generally provide a right in their property and privacy against unreasonable searches and seizures, and a requirement that search warrants be specific and based on probable cause (with some exceptions). A search occurs when the government impinges on an individual's “reasonable expectation of privacy.” The rule is enforced in part by excluding evidence from trial that was obtained in violation of these requirements.
As communications technology evolved, Congress passed in 1986 the
Electronic Communications Privacy Act to regulate interception of
electronic data and access of stored electronic communications.
Unfortunately, technology continued to advance rapidly since the
Act's inception nearly 30 years ago and amendments to the Act have
not always kept pace.
The author contends that the federal
statute "has not been meaningfully updated to account for modern
technology," and quotes the U.S. DOJ as writing that there is
“no principled basis” for maintaining the outdated distinctions
that allow for warrantless access to older content and that the law
draws lines that "may have made sense in the
past have failed to keep up with the development of technology."
The author also cites a variety of situations where California law already explicitly requires a warrant for many kinds of information, including "any information sought by California law enforcement held by a company outside of California; any information sought by out of state law enforcement held by a company inside of California; any personal information sought from a provider of book services; non-content information sought by California law enforcement in connection with a misdemeanor property crime held by a California service provider; and contents of communications or the information obtained by a pen register sought from a utility in connection with embezzlement and fraud investigations. Both the federal and California Wiretap Acts also require a 'super-warrant' with additional protections to capture live communications."
As a result, the author and supporters believe that existing law is
insufficient to protect all forms of electronic communications and
their meta-data, such personal emails stored on a company's servers
or mobile phone location data held by carriers – information that
is in great demand from law enforcement.
The growth in government requests for electronic data. As evidence of the confusion around how certain kinds of communications or data are protected by the Fourth Amendment, the author and supporters contend that warrantless demands by government agencies for personal information have increased substantially in recent years.
According to data provided by the author, "Google received over 12,500 requests from U.S. law enforcement in the first 6 months of 2014 alone, a 250 percent increase in just the past five years. Only around 25 percent of those requests were warrants. AT&T received over 64,000 demands for location information in 2014, nearly 70% increase in a single year. Verizon received over 15,000 demands for location data in the first half of 2014, only 1/3 with a warrant. Twitter and Tumblr both received more demands from California law enforcement than any other state."
The large number of requests has likely not gone unnoticed by consumers, as the author cites a Pew Research Center poll from November 2014 which found that "70% of social networking site users are concerned about government access and another recent poll showed that only 7% trust email for secure communications." Consumer discontent related to the low level of trust in privacy has also garnered the attention of the tech industry, which the author says is "increasingly concerned about loss of consumer trust and its business impact, including potential losses in the billions of dollars for California technology companies."
Recent Supreme Court decisions on electronic communications. With this explosion in requests for electronic data by law enforcement, long-standing questions about the level of authorization required to conduct a search or intercept communications are back in the spotlight. Two major, recent U.S. Supreme Court decisions are relevant to that discussion.
In the case of U.S. v. Jones (132 S.Ct. 945 (2012)), the Court
ruled that the physical attachment of a global positioning system
(GPS) device to a car and monitoring its movements over the course of
a month as part of a drug trafficking investigation required a search
warrant under the Fourth Amendment, although the reasoning differed
between the Justices. This left open the question of whether
government's collection of geolocation data requires a warrant when
there is no physical invasion, such as getting GPS information from a
mobile phone company. The Court even highlighted this uncertainty,
writing, "[i]t
may be that achieving the same result through electronic means,
without an accompanying trespass, is an unconstitutional invasion of
privacy, but the present case does not require us to answer that
question." Instead, Justice Alito appears to invite action by
Congress and the states, saying “a legislative body
is well suited to gauge changing public attitudes, to draw detailed
lines, and to balance privacy and public safety in a comprehensive
way.”
A
more recent case, Riley
v.
United States (134
S.Ct. 2473 (2014)), held that the Fourth Amendment requires a warrant
prior to searching digital information on a cellphone seized during
an arrest. The Court found that searching an individual's purse for
evidence or a weapon during an arrest is qualitatively different than
searching someone's cellphone in part because there is less danger of
potential harm to an officer or of evidence being destroyed, but
there is also a far greater danger to an individual's privacy because
of the vast quantities and distinct types of personal information
that can be stored on a phone. In one widely quoted passage, the
Court wrote that treating the search of a purse like the search of a
cellphone "would be like saying a ride on horseback is
materially indistinguishable from a flight to the moon.”
According
to the author, SB 178 "codifies Riley and ensures that
its protections extend to all electronic devices while enumerating
the exceptional circumstances where a warrant is not required."
Similarly, it enshrines protection for location data consistent with
the decision in Jones. The aim is to create a
"clear, uniform warrant rule for California law enforcement
access to electronic information."
Finally, as
evidence of widespread legislative interest and action on the topic,
the author points to recent Congressional hearings and pending
bipartisan legislation to create a uniform warrant requirement for
stored communications access by law enforcement. The author also
states that sixteen state legislatures have enacted new
electronic privacy legislation, with ten states acting to protect
geophysical location data and six states protecting electronic
communications content.
This bill's impacts on privacy in practice. This bill aims to codify and strengthen privacy protections under the California Constitution in a number of ways. First, it requires a demonstration of probable cause to obtain electronic communications information from a third party service provider, responding to a high percentage of legally inadequate requests from law enforcement. It also applies the probable cause requirement to past electronic communications, regardless of their age, which is an improvement over federal law. SB 178 also guarantees that geolocation information is protected by the same standard, which codifies protections established in case law, and also protects some forms of 'metadata.'
Generally, this bill's requirement for a search warrant or probable cause order for electronic communications information is protective of personal privacy and in keeping with the California Constitution's explicit protection of an individual's right of privacy, but does provide for the traditional exceptions in limited circumstances (i.e., volunteered information, lost devices, emergency situations, etc.). Moreover, these requirements explicitly limit the searches to necessary information, judicial oversight of information obtained without a warrant or order, and deletion of unneeded information. SB 178 also requires reasonable notification to the target of the request, prohibits the use in court of information obtained in violation of these requirements, and provides authorization to affected entities and the Attorney General to take action to uphold these requirements.
Arguments in support. The Electronic Frontier Foundation, co-sponsor of this bill, writes, "While the premise of SB 178 is the strong privacy protections enshrined in the California constitution, even the U.S. Supreme Court is recognizing the need to protect digital data. This past summer, its decision in Riley v. California confirmed that electronic devices like cell phones, and specifically the digital data stored on the phone, differ in both 'a quantitative and a qualitative sense' from other physical objects accessible to law enforcement. These devices, and the digital data contained within, is 'not just another technological convenience' but, given 'all they contain and all they may reveal…hold for many Americans 'privacies of life.'" Thus the Supreme Court, required police 'get a warrant' before searching the data on a cell phone incident to arrest."
"SB 178 follows the spirit of Riley and extends the warrant requirement to a wealth of digital information that reveals personal and sensitive details about who we are, whom we communicate and associate with, and where we've been. While law enforcement will still be able to obtain this information and utilize it to solve crimes, SB 178 provides needed oversight by requiring law enforcement to obtain a search warrant in order to access this wealth of information. The bill contains reasonable exceptions that allow law enforcement to obtain digital information without a warrant during an emergency."
A retired Federal Magistrate Judge (S.D.
Cal.), the Hon. James F. Stiven,
writes: "[d]espite strong support for SB 178 in existing law,
its passage will bring needed clarity for all those affected,
including law enforcement. For example, legal uncertainty persists
about the treatment of location data obtained from cell phone
providers, despite the Jones
decision. Congress has not updated
the federal electronic surveillance laws that are nearing their 30th
birthday. Those laws have been justifiably criticized for being more
complex and convoluted than the tax laws and for being particularly a
mess regarding location data. At the same time, government lawyers
argue that under Fourth Amendment precedents from the 1970s, people
forfeit privacy in information, such as location data, stored with
third parties. While the Supreme Court has not extended those
precedents to modern communications technologies and its recent
decisions suggest it may not, the Court has not yet joined the
California Supreme Court in rejecting the third party rule’s
application to electronic communications and metadata."
"Because of the persisting legal uncertainty,
Californians have good reason to worry that the information SB 178
covers is inadequately protected.…SB 178 incorporates into
California statutory law legally sound provisions that are essential
to ensuring that Californians may take advantage of innovations in
communications technologies without sacrificing their
constitutionally protected rights to privacy, free expression and
free association."
Google adds, "SB 178 would update California law to ensure that online communications are afforded comparable privacy protections to those that exist for offline communications. We believe our users deserve stronger protections than they have today. Updating the state's electronic surveillance laws is one of the easiest and most effective ways to protect Californians' privacy. Law enforcement agencies must be able to pursue illegal activity and keep the public safe. But it's also important that laws afford the highest privacy protections for our users' communications and related information. In that context, if enacted, SB 178 will better align California's laws with how people use the Internet today and provide them with important protections they should reasonably expect."
Arguments in opposition. According to the California State Sheriffs' Association, SB 178 "has a myriad of problems: it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the Fourth Amendment. Much of the national debate around electronic privacy goes to whether the federal statutes governing third party records provide for sufficient protections. While there is a process for some law enforcement to obtain some records via subpoena rather than a search warrant, under existing California law, California prosecutors cannot obtain any electronic information without judicial review. This measure goes beyond the question of judicial review and search warrants, however, and creates barriers that will hinder law enforcement investigations."
The California District Attorneys Association (CDAA) argues that SB
178 "creates conflicts with existing laws regarding the
execution of search warrants and the lawful use of wiretaps, and
mandates the destruction of evidence by law enforcement." They
point out that many provisions of the bill are covered by existing
judicial decisions or federal law, such as restrictions on searching
electronic devices incident to arrest, and limits on accessing
content of electronic communications held by a service provider.
CDAA also argues that "[m]uch of the current
national debate around digital privacy and existing federal
protections boil down to the ability of some law enforcement to
access some information by subpoena – and without judicial review.
This is not the case in California... Under current law, California
prosecutors cannot get any electronic evidence – neither content,
nor information about the subscriber – without judicial
review."
Additionally, CDAA criticizes the bill for
"eliminate[ing] the standard 'ten-day rule' for electronic
evidence", which they say will result in "the addition of
unnecessary boilerplate to warrants, or a burdensome two-step process
when searching for electronic evidence – neither of which add to
the privacy of a suspect's data." CDAA also claims that "SB
178 combines wiretaps and stored communications in the same statute.
In doing so, it creates conflicts with the existing California
wiretap statutes…" Finally, they say that the bill's
requirement to destroy "evidence" before the investigation
is finished or the case adjudicated may lead to "an accused
individual [being] denied evidence of his or her
innocence...[M]andating evidence destruction before a case is over
will never be a good idea."
Finally, the California Police Chiefs Association states that "we are incredibly concerned" about the impact of the prohibition on access to device information by means of electronic communication. They state,"[o]ne of the most effective techniques to identify and arrest child predators or to combat the trade of child pornography is through undercover investigations where police officers create online profile posing as either potential victims or trading partners…The emails that offenders voluntarily send to police officers contain information ('metadata') that is invaluable in locating and identifying these dangerous criminals. Similar techniques are commonly used to track stalkers, cyber bullies, and internet fraudsters. The proposed prohibition on electronic communication that reveals device information (along with the restrictive definition of 'specific consent') would effectively end online undercover investigations in California."
Technical amendments. In order to address the concerns of opponents that this bill might interfere with undercover efforts to identify child predators and other criminals online, the author has agreed to explicitly define the term "specific consent" to better clarify the bill's existing language which states that emails or other communications sent or addressed to a government entity meet the requirements for specific consent.
On page 4, strike lines 21-22 and add:
(k)“Specific consent” means consent provided directly to the
government entity seeking information, including when the government
entity is the addressee or intended recipient of an electronic
communication.
On page 5, lines 16-18, strike the words:
including when a government entity is the intended recipient of an electronic communication initiated by the authorized possessor of the device
Two-thirds vote requirement. The California Constitution provides for a "Right to Truth-in-Evidence" as a result of the passage of the Victim's Bill of Rights Act (California Proposition 8, 1982). That measure was intended to ensure that a state court did not unnecessarily exclude evidence relevant to a criminal prosecution, even if gathered in a manner that violates the rights of the defendant, although the U.S. Constitution may still require exclusion in some cases. Any exception to this right requires a two-thirds vote by both the Assembly and the Senate.
Because this bill would exclude evidence obtained or retained in violation of this bill's provisions, it will require a two-thirds vote for passage on the Assembly Floor.
Previous legislation. SB 467 (Leno) of 2013 would have required a search warrant when a governmental agency is seeking the contents of a wire or electronic communication that is stored, held or maintained by a provider. SB 467 was vetoed by Governor Brown, who wrote: "The bill, however, imposes new notice requirements that go beyond those required by federal law and could impede ongoing criminal investigations. I do not think that is wise."
SB
1434 (Leno) of 2012 would have required a government entity to get a
search warrant in order to obtain the location information of an
electronic device. SB 1434 was vetoed by Governor Brown, who wrote:
"It may be that legislative action is needed to keep the law
current in our rapidly evolving electronic age. But I am not
convinced that this bill strikes the right balance between the
operational needs of law enforcement and individual expectations of
privacy."
SB 914 (Leno) of 2011 would have required a search warrant to search the contents of a portable electronic device that is found during a search incident to an arrest. SB 914 was vetoed by Governor Brown, who wrote: "This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections."
Double-referral. This bill is double-referred with the Assembly Public Safety Committee, where this bill will be heard if passed by this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Newspaper Publishers Association (co-sponsor)
Electronic Frontier Foundation (co-sponsor)
Adobe
Airbnb
American Civil Liberties Union of California
Apple, Inc.
Asian Law Caucus
Bay Area Civil Liberties Coalition
California Attorneys for Criminal Justice
California Correctional Peace Officers Association
California Immigrant Policy Center
California Library Association
California Public Defenders Association
Center for Democracy & Technology
Center for Media Justice
Citizens for Criminal Justice Reform - California
Civil Justice Association of California
ColorOfChange.org
Consumer Action
Consumer Federation of California
Council on American-Islamic Relations, California Chapter
Dropbox
Drug Policy Alliance
Ella Baker Center for Human Rights
Engine
Foursquare Labs, Inc.
Google, Inc
Internet Archive
Internet Association
Legal Services for Prisoners with Children
Media Alliance
Mozilla
Namecheap, Inc.
National Center for Lesbian Rights
New America’s Open Technology Institute
Oakland Privacy Working Group
Privacy Rights Clearinghouse
Restore the Fourth (San Francisco Bay Area Chapter)
Small Business California
TechFreedom
TechNet
TURN-The Utility Reform Network
17 individual legal scholars
1 individual
Opposition
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200
SB 178
Page 13
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 178
Author: Leno (D) and Anderson (R) et.al.
Amended: 6/2/15
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 3/24/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Privacy: electronic communications: search warrant
SOURCE: American Civil Liberties Union
California Newspaper Publishers Association
DIGEST: This bill requires a search warrant or wiretap order for access to all aspects of electronic communications except where federal law allows voluntary disclosure.
Existing law:
The US Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched an the persons or things to be seized.” (4th Amendment of the U.S. Constitution.)
The California Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)
Existing law defines a “search warrant” as an order in writing in the name of the People, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Penal Code § 1523.)
Provides that a search warrant may be issued only upon specified grounds. (Penal Code § 1524(a).)
Sets forth procedures for a search warrant issued for records of a foreign corporation that provides electronic communication services or remote computing services to the general public, where those records would reveal the identity of the customers using services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications. (Penal Code § 154.2)
Provides that a provider of electronic communication or remote computing service shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to a customer of that service and types of services the subscriber or customer utilized when the governmental entity is granted a search warrant. (Penal Code § 1524.3(a))
Provides that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days which shall be extended for an additional 90-day upon a renewed request by the peace officer. (Penal Code § 1524.3(d))
Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things and the place to be searched. (Penal Code § 1525.)
Authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)
This bill:
Creates the Electronic Communications Privacy Act.
Provides that except as otherwise provided a government entity shall not do any of the following:
Compel the production of or access to electronic device information from any person or entity except the authorized processor of the device;
Compel the production of or access to electronic device information from any person or entity except the authorized processor of the device; or,
Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized processor of the device.
Provides that a government entity may compel the production of or access to electronic communication information or electronic communication with the device information by means of physical interaction with the device only pursuant to a wiretap order or pursuant to a search warrant provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
Provides that a government entity may access electronic device information by means of the physical interaction or electronic communication with the device only as follows:
In accordance with a wiretap order or search warrant issued pursuant to the appropriate Penal Code provision, provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant;
With the specific consent of the owner or authorized possessor of the device, when a government entity is the intended recipient of an electronic communication initiated by the owner or authorized possessor of the device;
With the specific consent of the owner of the device when the device has been reported lost or stolen;
If the government entity, in good faith, believes that an emergency involving imminent danger of death or serious physical injury to any person requires access to the electronic device information; and,
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
Provides that the warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered.
Provides that the warrant or order shall identify the effective date upon which the warrant is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
Provides that the warrant or order shall comply with all other provisions of California and federal law, including any provision prohibiting, limiting or imposing additional requirements on the use of search warrants or wiretap orders.
Provides that when issuing any warrant or wiretap order the court may do any of the following:
Appoint a special master to ensure only information necessary to achieve the objective of the warrant or order is produced or accessed; or,
Require any information obtained through the execution of the warrant or order that is unrelated be destroyed.
Provides that a service provider may disclose, but is not required to disclose, electronic communication information or subscriber information when disclosure is not otherwise prohibited by law.
Provides that if a government entity receives electronic communication without a warrant or order, it shall delete the information within 90 days unless the entity has or obtains the specific consent or the sender of the sender or recipient about which the information was disclosed or obtains a court order authorizing the retention of the information, and specifies when the court shall order a retention order.
Provides that if a government entity requests that a service provider disclose information or if the government entity obtains information involving the danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall within three days after seeking the disclosure, file with the court a motion seeking approval of the requested emergency disclosures and shall set forth the facts giving rise to the emergency. If the court finds the facts did not give rise to the emergency the court shall order the information destroyed.
Provides that it does not limit the authority of a government to use administrative, grand jury, trial or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication; or,
Require an entity that provides electronic communications services to its officers, directors, employees, or agents to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee or agent of the entity.
Provides that except as otherwise provided the government entity that executes a warrant or wiretap order or issues and emergency request shall contemporaneously notice the identified targets that the information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought.
Provides that when a wire tap order or search warrant is sought the government entity may submit a request supported by an affidavit for an order delaying notification and prohibiting any party from providing information or notifying any party it is being sought. If the court determines notification may have an adverse impact the court may delay notification for up to 90 days with subsequent extensions for 90 days.
Provides that except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil or administrative proceeding or used in an affidavit in an effort to obtain a search warrant or court order.
Provides that the Attorney General may commence a civil action to compel any government entity to comply with the provisions of this bill.
Provides that if a warrant or wiretap order does not comply with this chapter, a service provider, or any other recipient of the warrant or wiretap order, or any individual whose information is target by the warrant or wiretap order, may petition the court to void or modify the warrant or order the destruction of any information obtained in violation of the chapter.
Defines electronic communication information as any information about an electronic communication or the use of an electronic communication service, including, but not limited to the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent or received, or any information pertaining to any individual or device participating in the communication including, but not limited to an IP address but does not include subscriber information.
Defines electronic communication service as a service that provides its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications or stores electronic communication information.
Defines electronic device as a device that stores, generates, or transmits information in electronic form.
Background
Search and seizure generally: The 4th Amendment of the US Constitution and Article I, Section 13 of the California Constitution protect people against unreasonable searches and seizures. Generally, the lawfulness of a search of the items in the arrestee’s immediate control is based upon the need to protect the officer and to discover evidence in the case. This has been found to include search of items when a person is booked into jail on the theories that the time lag is inconsequential; it is less of an invasion than a public search at the place of arrest; is necessary for inventory purposes; and, can protect from contraband being brought into the jail. However, if the search is remote in time and the property has been removed from the defendant’s possession and is in the control of the police, then a warrantless search has been found not to be reasonable. Numerous cases have looked at this issue of when a search incident to arrest is valid. (See for example: U.S v. Robinson (1973) 414 U.S. 218; U.S. V. Edwards (1974) 415 U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v. Belton (1981) 453 U.S. 454; People v. Hamilton (1988) 46 C. 3d 123) ) After Proposition 8 (June 1982), in California, the scope of a search incident to arrest is based on federal law; thus, California courts will look to the federal courts for precedent when deciding a case.
Wiretap generally: The United States Supreme Court ruled in Katz v. United States (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576, that telephone conversations were protected by the Fourth Amendment to the United States Constitution. Intercepting a conversation is a search and seizure similar to the search of a citizen's home. Thus, law enforcement is constitutionally required to obtain a warrant based on probable cause and to give notice and inventory of the search.
In 1968, Congress authorized wiretapping by enacting Title III of the Omnibus Crime Control and Safe Streets Act. (See 18 USC Section 2510 et seq.) Out of concern that telephonic interceptions do not limit the search and seizure to only the party named in the warrant, federal law prohibits electronic surveillance except under carefully defined circumstances. The procedural steps provided in the Act require "strict adherence." (United States v. Kalustian, 529 F.2d 585, 588 (9th Cir. 1976)), and "utmost scrutiny must be exercised to determine whether wiretap orders conform to Title III.")
Both Federal and California law requires that each wiretap application include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." (18 USC Section 2518 (1)(c); Penal Code Section 629.50(d).) Often referred to as the "necessity requirement," it exists in order to limit the use of wiretaps, which are highly intrusive. (United States v. Bennett, 219 F.3d 1117, 1121 (9th Cir. 2000).) The original intent of Congress in enacting such a provision was to ensure that wiretapping was not resorted to in situations where traditional investigative techniques would suffice to expose the crime.
Recent supreme court cases: The fact that Fourth Amendment protections extends to electronic information has been recently affirmed by the United States Supreme Court.
In United States v. Riley, 134 S. Ct. 2473 (2014) involved two cases. In the first case, the defendant (Riley) was stopped for a traffic violation which lead to his arrest on a misdemeanor firearms charge. In the search incident to his arrest the officer searched his phone and noticed terminology related to gangs. The phone was further searched at the police station and photos and videos on the phone lead to Riley being charged in connection with a shooting and the phone evidence being used to claim a gang enhancement. In the second case, as a result of his cell phone being searched the defendant’s apartment was searched and guns and drugs were found after he was arrested during a drug sale. “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” (Id. at 2484. ) The Supreme Court refused to apply to cell phone searches the precedents established for the searches of purses and wallets because “that would be like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (Id. at 2488.) Recognizing that modern cell phones’ storage capacity and multi-functionality allow them to contain “the privacies of life,” the Court required law enforcement to “get a warrant” for cell phone searches. (Id. at 2495.)
In the case of U.S. v. Jones (132 S.Ct. 945(2012)), the court found that the government’s attachment of a global positioning system (GPS) device to a vehicle and its use of that device to monitor the vehicle’s movements constituted a search warrant under the 4th Amendment. In Jones, all members of the Court found that the law enforcement’s attachment and subsequent monitoring of a GPS on a vehicle violated the 4th Amendment, although with two concurring opinions, various judges reached that conclusion using different legal reasoning.
In Jones, the United States Supreme Court held that attaching a GPS device to a person's vehicle to track his or her movements constitutes a search within the meaning of the Fourth Amendment. Authorities obtained a search warrant to install a GPS device on defendant's car as part of a drug trafficking investigation. But, the authorities did not install the device until after the warrant expired. The device was used to track the defendant's movements for almost one month. When charges were filed against defendant, he moved to suppress the GPS evidence as the product of an illegal search. The prosecution argued at trial and on appeal that a search within the meaning of the Fourth Amendment had not occurred because Jones did not have a reasonable expectation of privacy in the location of his vehicle on public streets, which was visible to all.
The Supreme Court found the government's use of a GPS monitoring device was a search within the meaning of the Fourth Amendment, and therefore must be reasonable. The majority decision was not based on the reasonable expectation of privacy test for challenges to law enforcement surveillance, which is generally employed. (Katz v. U.S. (1967) 389 U.S. 347.) Instead, the majority based its decision on common law trespass principals, holding that attaching a GPS device to a vehicle (an "effect") for purposes of data collection constitutes a search because the government physically occupied private property for the purpose of information gathering. But five of the justices (the four members of the Alito concurrence, plus Justice Sotomayor) were critical of the trespass theory, stating the majority should have used the reasonable expectation of privacy test.
Comments
Unless a search warrant or wiretap order is obtained, this bill prohibits a government entity from: compelling the production of or access to electronic communications from an information service provider; compelling the production of or access to electronic device information from any person or entity except the authorized possessor of the device; or, accessing electronic device information by means of physical interaction or electronic communication with the device except with the specific consent of the authorized user.
Exceptions exist to the warrant requirement including consent of the owner of a device and when the government in good faith believes that an emergency involving imminent danger of death or serious physical injury requires access to the electronic device information or the entity reasonably believes the device is stolen.
This bill further requires notice to the targets of warrant or wiretap contemporaneously with the execution of the warrant unless a court ordered delay of notice is granted for a renewable period up to 90 days.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee analysis:
Noticing requirements: Ongoing potentially significant costs to state and local law enforcement agencies for those noticing provisions in the bill that exceed requirements under federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.
Information deletion: Unknown, but potentially significant costs to government entities for the required deletion of information within the specified time period. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
DOJ impact: Significant ongoing costs potentially in excess of $300,000 (General Fund) for resources to meet the noticing requirements of the bill. Minor, absorbable impact to aggregate and post annual reports received to its website.
American Civil Liberties Union (co-source)
California Newspaper Publishers Association (co-source)
Adobe
Airbnb
Apple Inc.
Asian Americans Advancing Justice
Bay Area Civil Liberties Coalition
California Attorneys for Criminal Justice
California Chamber of Commerce
The California Chapter of the Council on American-Islamic Relations
California Correctional Peace Officers Association
California Immigrant Policy Center
California Library Association
California Public Defenders Association
Center for Democracy and Technology
Center for Media Justice
Centro Legal de la Raza
Citizens for Criminal Justice Reform
Civil Justice Association of California
Color of Change
Consumer Action
Consumer Federation of California
Council on American-Islamic Relations
Dropbox
Drug Policy Alliance
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Engine
Foursquare
The Internet Archive
Internet Association
Legal Services for Prisoners with Children
Media Alliance
Microsoft
Mozilla
Namecheap, Inc.
National Center for Lesbian Rights
New America: Open Technology Institute
Oakland Privacy Working Group
Privacy Rights Clearinghouse
Restore the Fourth Bay Area Chapter
Small Business California
TechFreedom
Technet
TURN (the Utility Reform Network)
Sixteen law professors.
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs Associaiton
ARGUMENTS IN SUPPORT:
In support California Newspaper Publishers Association, a co-source of this bill, states:
The threat of law enforcement obtaining protected, personal information from third parties without a warrant presents serious problems for newspaper publishers, editors and working journalists. California has unique protections that allow publishers, editors, and working journalists to maintain sensitive source information and unpublished notes without being subject to routine access by law enforcement and litigants.
Twitter supports this bill, stating:
Current federal law that extends fourth amendment right to electronic communications is nearly 30 years out of date. As technology and the nature of data transmission and storage has changed, the protections afforded by the Federal ECPA law has largely lapsed. Although there is broad support to ECPA reform in Washington, it is unclear if Congress will act in timely fashion to clarify Federal law. This leaves the responsibility of protecting consumer’s rights in the hands of private communication service providers.
SB 178 will modernize electronic communications protections and ensure that, in California, an individual’s digital property cannot be seized without a warrant. By acting in a timely fashion, SB 178 will set a standard for protecting the rights of users everywhere that can and should be replicated across the country.
Privacy Rights Clearinghouse states in support of this bill:
SB 178 follows the spirit of Riley and extends the warrant requirements to digital information that reveals personal and sensitive details about who we are, whom we communicate and associate with, and where we’ve been. While law enforcement will still be able to obtain this information and utilize it to solve crimes, SB 178 provides needed oversight by requiring law enforcement obtain a search warrant in order to access this wealth of information. The bill contains reasonable exceptions that allow law enforcement to obtain digital information without a warrant in an emergency.
ARGUMENTS IN OPPOSITION:
The California District Attorneys Association opposes this bill, stating:
This bill, the Electronic Communications Privacy Act, would establish a number of new procedures and reporting requirements for law enforcement agencies to comply with when seeking a search warrant for electronic communications. Unfortunately, in doing so, it undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution.
The California State Sheriffs’ Association opposes this bill, stating:
This measure has a myriad of problems: it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the Fourth Amendment.
Prepared by: Mary Kennedy / PUB. S. /
6/2/15 21:27:02
**** END ****
SB 178 (Leno) Page 6 of 6
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular
SB 178 (Leno) - Privacy: electronic communications: search warrants
|
|
Version: April 22, 2015 |
Policy Vote: PUB. S. 6 - 1 |
Urgency: No |
Mandate: Yes |
Hearing Date: May 28, 2015 |
Consultant: Jolie Onodera |
SUSPENSE FILE. AS AMENDED.
Bill Summary:
SB 178 would create the Electronic Communications Privacy Act, which would require a search warrant or wiretap order for access to all aspects of electronic communications, with specified exceptions, and would specify noticing and information deletion requirements. This bill would require a government entity, as defined, that obtains information pursuant to the Act to annually report specified data to the Attorney General, and would require the Department of Justice (DOJ) to aggregate and publish the information on its website by April 1, 2017, and annually thereafter.
Fiscal Impact (as approved May 28, 2015):
Noticing requirements: Ongoing potentially significant costs to state and local law enforcement agencies for those noticing provisions in the bill that exceed requirements under federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.
Information deletion: Unknown, but potentially significant costs to government entities for the required deletion of information within the specified time period. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
DOJ impact: Significant ongoing costs potentially in excess of $300,000 (General Fund) for resources to meet the noticing requirements of the bill. Minor, absorbable impact to aggregate and post annual reports received to its website.
Background:
The Fourth Amendment to the U.S. Constitution and Article I, Section 13 of the California Constitution protect the right of the people against unreasonable searches and seizures. In recent cases, the U.S. Supreme Court has affirmed that Fourth Amendment protections extend to electronic information, and that protection must keep pace with advancing technology.
Existing federal law under the Electronic Communications Privacy Act provides that a government entity may only access the contents of communications in electronic storage for 180 days or less pursuant to a warrant. If the contents of a wire or electronic communications have been in electronic storage in an electronic communications system for more than 180 days, a government entity may require its disclosure through other means such as a subpoena or a court order with prior notice to the subscriber or customer. However, a government entity may access the contents of a wire or electronic communications that have been in electronic storage for more than 180 days without required notice to the subscriber or customer if the government entity obtains a warrant.
Further, under existing federal law, a governmental entity may require a provider of electronic communication service to disclose a record or other information pertaining to a subscriber to or customer of such service under specified circumstances, including pursuant to a warrant or court order. A governmental entity receiving records or information under this provision of federal law is not required to provide notice to a subscriber or customer. (18 USC § 2703.)
This bill seeks to update existing state law by instituting a clear, uniform warrant process for government access to all aspects of electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.
Proposed Law:
This bill would enact the Electronic Communications Privacy Act, which would provide that government entities shall not compel the production of or access to electronic information, as defined, without a warrant or wiretap order, with specified exceptions. Additionally, this bill:
Provides that a government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
In accordance with a wiretap order or search warrant, as specified.
With the specific consent of the authorized possessor of the device, including when a government entity is the intended recipient initiated by the authorized possessor of the device.
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the authorized possessor of the device.
Requires a government entity receiving electronic communication information voluntarily to delete that information within 90 days unless specific consent or a court order has been obtained authorizing retention of the information.
Requires a government entity that executes a warrant or wiretap order, or an emergency, as specified, to contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means, the identified targets of the warrant, order, or request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states the nature of the investigation. The notice is to include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
Requires a government entity to take reasonable steps to provide notice within three days of the execution of the warrant, wiretap, or emergency request or access, to all individuals about whom information was disclosed or obtained if there is no identified target.
Authorizes a government entity to submit a request for a court order delaying notification for up to 90 days that prohibits any party from notifying any other party that information has been sought. Extensions for up to 90 days may be granted by the court.
Upon expiration of the period of delay, requires government entities to notice every individual whose electronic information was acquired, a document including specified information, a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the court’s determination to grant a delay in notification.
Specifies a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of an order issued pursuant to this chapter.
Specifies that except as proof of a violation of this Act, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
Requires a government entity that obtains electronic information pursuant to the provisions of this Act to make an annual report to the AG on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report is to include all of the following:
The number of requests or demands for electronic information.
The number of requests or demands made, and the number of records received for each of the following types of records:
Electronic communication content.
Location information.
Other electronic information.
For each of the types of records in (b), all of the following:
The number of requests or demands that were each of the following:
Wiretap orders
Search warrants
Emergency requests
The total number of users whose information was requested or demanded.
The total number of requests or demands that did not specify a target individual.
The number of requests or demands complied with in full, partially complied with, or refused.
The number of times the notice to the affected party was delayed and the average length of the delay.
The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
For contents of electronic communications, the total number of communications contents received.
For location information, the average period for which location information was obtained or received and the total number of location records received.
For other electronic communication information, the types of records requested and the total number of records of each type received.
On or before April 1, 2017, and each April 1 thereafter, requires the DOJ to publish on its internet website both of the following:
The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
A summary aggregating each of the items required to be reported by government entities.
Prior Legislation:
SB 467 (Leno) 2013 would have required a search warrant for access to electronic communications, and mandated specified notifications by law enforcement. This bill was vetoed by the Governor with the following message:
This
bill requires law enforcement agencies to obtain a search warrant
when seeking access to electronic communications. Federal law
currently requires a search warrant, subpoena or court order to
access this kind of information and in the vast majority of cases,
law enforcement agencies obtain a search warrant. The bill, however,
imposes new notice requirements that go beyond those required by
federal law and could impede ongoing criminal investigations. I do
not think that is wise.
SB 1434 (Leno) 2012 would have prohibited a government entity from obtaining the location information of an electronic device without a valid search warrant unless certain exceptions apply. This bill was vetoed by the Governor.
SB 914 (Leno) 2011 would have prohibited the search of information contained in a portable electronic device by a law enforcement officer incident to a lawful custodial arrest except pursuant to a search warrant. This bill was vetoed by the Governor.
Staff Comments:
The provisions of this bill will significantly increase costs to government entities with regard to the overall process of requesting and obtaining electronic information, while strengthening protections for consumers with respect to electronic privacy law. While some of the provisions of the Act are consistent with existing federal/state and case law, the data collection/reporting, information deletion, and certain noticing provisions mandated by the Act will result in new workload for local agencies.
Data collection/reporting to DOJ
This bill requires government entities that “obtain electronic information pursuant to this chapter” to make an annual report including specified data to the DOJ. As the chapter essentially covers all means by which to obtain electronic information, whether through request or demand, it is estimated that all law enforcement entities, both local and state, would be subject to the data collection and reporting requirements of this bill. There are currently 482 cities and 58 counties in the State. While statewide costs cannot be estimated with certainty, given the large number of local agencies and the numerous types of data required to be collected and reported, these activities could result in major one-time and ongoing costs, potentially in the tens of millions of dollars annually. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). As an example, the Commission on State Mandates’ statewide cost estimate for Crime Statistics Reports for the DOJ reflects eligible reimbursement of over $13.6 million per year for slightly over 50 percent of local agencies reporting.
The costs to individual agencies would vary widely and depend on various factors, including but not limited to the size of the agency, the volume of requests and demands for electronic information by the agency, the type of electronic data, the number of records for each request/demand, and the workload involved to fulfill each of the data elements required to be reported. For example, while the workload involved to report the number of requests and demands for electronic information may not be substantial, the workload required to collect and track the number of times each notice to an affected party was delayed and the average length of the delay, would be much more onerous. To the extent local agencies additionally require the development of a central database and other system enhancements to collect, track, and report the information, these one-time and ongoing costs for maintenance and operations could also be very significant.
Noticing requirements
Certain noticing requirements specified in the bill are consistent with provisions of federal, state, and case law, and are not estimated to result in increased costs to agencies. However, as noted in the Background Section of this analysis, under existing federal law (18 USC § 2703), a governmental entity is not required to provide notice to a subscriber or customer when a warrant is obtained for specified electronic information. And the delayed notification provisions under federal law apply only to use of administrative subpoenas or court orders, which require customer notification. As a result, certain provisions of this bill will result in a higher level of service for agencies, resulting in potentially significant ongoing costs. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
The costs to agencies would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used. For example, a request or order for metadata with no identified target could involve hundreds or more individuals, that would require noticing, as the bill requires all individuals about whom information was disclosed or obtained to be noticed. The requirements under delayed notification additionally require a copy of all information obtained, or a summary of that information including the number and types of records, the date and time when specified records were created, and a statement of the grounds for the court’s determination to grant a delay in notification.
Information deletion
Government entities could incur new costs for the required deletion of information voluntarily provided within the 90-day time period. Because an agency could avoid this workload through a court order or by obtaining a warrant or order for the information, any new costs to an agency attributable to information deletion would reduce the additional costs noted above that otherwise would be incurred by that agency for noticing and the associated data collection on noticing. To the extent local agency expenditures for information deletion qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
2/3-Vote Requirement
The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 -vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified. Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it triggers the 2/3-vote requirement.
Author amendments (as adopted May 28, 2015):
For cases in which there is no identified target of a warrant, wiretap order, or emergency request or access, deletes the requirement that the government entity take reasonable steps to provide notice within three days and instead requires the entity to submit to the Department of Justice (DOJ) within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought.
Require DOJ to publish each report received on its website within 90 days of receipt.
Add a coauthor.
Make other technical changes.
Committee amendments (as adopted May 28, 2015): Delete the data collection and reporting requirements of the bill.
-- END --
SB 178 (Leno) Page 6 of 6
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular
SB 178 (Leno) - Privacy: electronic communications: search warrants
|
|
Version: April 22, 2015 |
Policy Vote: PUB. S. 6 - 1 |
Urgency: No |
Mandate: Yes |
Hearing Date: April 27, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 178 would create the Electronic Communications Privacy Act, which would require a search warrant or wiretap order for access to all aspects of electronic communications, with specified exceptions, and would specify noticing and information deletion requirements. This bill would require a government entity, as defined, that obtains information pursuant to the Act to annually report specified data to the Attorney General, and would require the Department of Justice (DOJ) to aggregate and publish the information on its website by April 1, 2017, and annually thereafter.
Fiscal Impact:
Data collection and reporting: major one-time and ongoing costs, potentially in the tens of millions of dollars annually to local law enforcement agencies for data collection and reporting requirements specified in the bill. There are currently 482 cities and 58 counties in California. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). While costs could vary widely, for context, the Commission on State Mandates’ statewide cost estimate for Crime Statistics Reports for the DOJ reflects eligible reimbursement of over $13.6 million per year for slightly over 50 percent of local agencies reporting.
Noticing requirements: ongoing costs potentially in the millions of dollars annually to local law enforcement agencies for those noticing provisions in the bill that exceed requirements under federal law. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). Costs would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used.
Information deletion: unknown, but potentially significant costs to government entities for the required deletion of information within the specified time period. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
DOJ impact: significant ongoing costs of about $280,000 (General Fund) for resources to meet the noticing requirements of the bill. Unknown, but potentially significant ongoing costs (General Fund) to complete data collection and reporting requirements for warrants/wiretaps. Minor, absorbable impact to aggregate and post annual reports received to its website.
CHP impact: potentially significant one-time costs (General Fund) to establish a central database, create necessary forms for data collection/reporting, and train personnel. Ongoing increase in workload costs in excess of $50,000 (General Fund) for noticing and reporting activities.
Background:
The Fourth Amendment to the U.S. Constitution and Article I, Section 13 of the California Constitution protect the right of the people against unreasonable searches and seizures. In recent cases, the U.S. Supreme Court has affirmed that Fourth Amendment protections extend to electronic information, and that protection must keep pace with advancing technology.
Existing federal law under the Electronic Communications Privacy Act provides that a government entity may only access the contents of communications in electronic storage for 180 days or less pursuant to a warrant. If the contents of a wire or electronic communications have been in electronic storage in an electronic communications system for more than 180 days, a government entity may require its disclosure through other means such as a subpoena or a court order with prior notice to the subscriber or customer. However, a government entity may access the contents of a wire or electronic communications that have been in electronic storage for more than 180 days without required notice to the subscriber or customer if the government entity obtains a warrant.
Further, under existing federal law, a governmental entity may require a provider of electronic communication service to disclose a record or other information pertaining to a subscriber to or customer of such service under specified circumstances, including pursuant to a warrant or court order. A governmental entity receiving records or information under this provision of federal law is not required to provide notice to a subscriber or customer. (18 USC § 2703.)
This bill seeks to update existing state law by instituting a clear, uniform warrant process for government access to all aspects of electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.
Proposed Law:
This bill would enact the Electronic Communications Privacy Act, which would provide that government entities shall not compel the production of or access to electronic information, as defined, without a warrant or wiretap order, with specified exceptions. Additionally, this bill:
Provides that a government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
In accordance with a wiretap order or search warrant, as specified.
With the specific consent of the authorized possessor of the device, including when a government entity is the intended recipient initiated by the authorized possessor of the device.
With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the authorized possessor of the device.
Requires a government entity receiving electronic communication information voluntarily to delete that information within 90 days unless specific consent or a court order has been obtained authorizing retention of the information.
Requires a government entity that executes a warrant or wiretap order, or an emergency, as specified, to contemporaneously serve upon, or deliver by registered or first-class mail, electronic mail, or other means, the identified targets of the warrant, order, or request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states the nature of the investigation. The notice is to include a copy of the warrant or order, or a written statement setting forth facts giving rise to the emergency.
Requires a government entity to take reasonable steps to provide notice within three days of the execution of the warrant, wiretap, or emergency request or access, to all individuals about whom information was disclosed or obtained if there is no identified target.
Authorizes a government entity to submit a request for a court order delaying notification for up to 90 days that prohibits any party from notifying any other party that information has been sought. Extensions for up to 90 days may be granted by the court.
Upon expiration of the period of delay, requires government entities to notice every individual whose electronic information was acquired, a document including specified information, a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the court’s determination to grant a delay in notification.
Specifies a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of an order issued pursuant to this chapter.
Specifies that except as proof of a violation of this Act, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil, or administrative proceeding, or used in an affidavit in an effort to obtain a search warrant or court order.
Requires a government entity that obtains electronic information pursuant to the provisions of this Act to make an annual report to the AG on or before February 1, 2017, and each February 1 thereafter. To the extent it can be reasonably determined, the report is to include all of the following:
The number of requests or demands for electronic information.
The number of requests or demands made, and the number of records received for each of the following types of records:
Electronic communication content.
Location information.
Other electronic information.
For each of the types of records in (b), all of the following:
The number of requests or demands that were each of the following:
Wiretap orders
Search warrants
Emergency requests
The total number of users whose information was requested or demanded.
The total number of requests or demands that did not specify a target individual.
The number of requests or demands complied with in full, partially complied with, or refused.
The number of times the notice to the affected party was delayed and the average length of the delay.
The number of times records were shared with other government entities or any department or agency of the federal government, and the agencies with which the records were shared.
For contents of electronic communications, the total number of communications contents received.
For location information, the average period for which location information was obtained or received and the total number of location records received.
For other electronic communication information, the types of records requested and the total number of records of each type received.
On or before April 1, 2017, and each April 1 thereafter, requires the DOJ to publish on its internet website both of the following:
The individual reports from each government entity that requests or compels the production of contents or records pertaining to an electronic communication or location information.
A summary aggregating each of the items required to be reported by government entities.
Prior Legislation:
SB 467 (Leno) 2013 would have required a search warrant for access to electronic communications, and mandated specified notifications by law enforcement. This bill was vetoed by the Governor with the following message:
This
bill requires law enforcement agencies to obtain a search warrant
when seeking access to electronic communications. Federal law
currently requires a search warrant, subpoena or court order to
access this kind of information and in the vast majority of cases,
law enforcement agencies obtain a search warrant. The bill, however,
imposes new notice requirements that go beyond those required by
federal law and could impede ongoing criminal investigations. I do
not think that is wise.
SB 1434 (Leno) 2012 would have prohibited a government entity from obtaining the location information of an electronic device without a valid search warrant unless certain exceptions apply. This bill was vetoed by the Governor.
SB 914 (Leno) 2011 would have prohibited the search of information contained in a portable electronic device by a law enforcement officer incident to a lawful custodial arrest except pursuant to a search warrant. This bill was vetoed by the Governor.
Staff Comments:
The provisions of this bill will significantly increase costs to government entities with regard to the overall process of requesting and obtaining electronic information, while strengthening protections for consumers with respect to electronic privacy law. While some of the provisions of the Act are consistent with existing federal/state and case law, the data collection/reporting, information deletion, and certain noticing provisions mandated by the Act will result in new workload for local agencies.
Data collection/reporting to DOJ
This bill requires government entities that “obtain electronic information pursuant to this chapter” to make an annual report including specified data to the DOJ. As the chapter essentially covers all means by which to obtain electronic information, whether through request or demand, it is estimated that all law enforcement entities, both local and state, would be subject to the data collection and reporting requirements of this bill. There are currently 482 cities and 58 counties in the State. While statewide costs cannot be estimated with certainty, given the large number of local agencies and the numerous types of data required to be collected and reported, these activities could result in major one-time and ongoing costs, potentially in the tens of millions of dollars annually. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). As an example, the Commission on State Mandates’ statewide cost estimate for Crime Statistics Reports for the DOJ reflects eligible reimbursement of over $13.6 million per year for slightly over 50 percent of local agencies reporting.
The costs to individual agencies would vary widely and depend on various factors, including but not limited to the size of the agency, the volume of requests and demands for electronic information by the agency, the type of electronic data, the number of records for each request/demand, and the workload involved to fulfill each of the data elements required to be reported. For example, while the workload involved to report the number of requests and demands for electronic information may not be substantial, the workload required to collect and track the number of times each notice to an affected party was delayed and the average length of the delay, would be much more onerous. To the extent local agencies additionally require the development of a central database and other system enhancements to collect, track, and report the information, these one-time and ongoing costs for maintenance and operations could also be very significant.
Noticing requirements
Certain noticing requirements specified in the bill are consistent with provisions of federal, state, and case law, and are not estimated to result in increased costs to agencies. However, as noted in the Background Section of this analysis, under existing federal law (18 USC § 2703), a governmental entity is not required to provide notice to a subscriber or customer when a warrant is obtained for specified electronic information. And the delayed notification provisions under federal law apply only to use of administrative subpoenas or court orders, which require customer notification. As a result, certain provisions of this bill will result in a higher level of service for agencies, resulting in potentially significant ongoing costs. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
The costs to agencies would be dependent on various factors including but not limited to the number of persons requiring notice, both contemporaneously and under the delayed noticing provisions, time/workload required per notice, and the method of noticing used. For example, a request or order for metadata with no identified target could involve hundreds or more individuals, that would require noticing, as the bill requires all individuals about whom information was disclosed or obtained to be noticed. The requirements under delayed notification additionally require a copy of all information obtained, or a summary of that information including the number and types of records, the date and time when specified records were created, and a statement of the grounds for the court’s determination to grant a delay in notification.
Information deletion
Government entities could incur new costs for the required deletion of information voluntarily provided within the 90-day time period. Because an agency could avoid this workload through a court order or by obtaining a warrant or order for the information, any new costs to an agency attributable to information deletion would reduce the additional costs noted above that otherwise would be incurred by that agency for noticing and the associated data collection on noticing. To the extent local agency expenditures for information deletion qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
2/3-Vote Requirement
The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 -vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified. Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it triggers the 2/3-vote requirement.
-- END --
SB 178 (Leno ) Page 12 of 12
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 178 Hearing Date: March 24, 2015
Author: |
Leno |
||
Version: |
March 16, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
MK |
||
Subject: Privacy: Electronic Communications: Search Warrants
HISTORY
Source: American Civil Liberties Union and California Newspaper Publishers Association
Prior Legislation: SB 467 (Leno) – Vetoed (2013)
SB 914 (Leno) – Vetoed (2012)
SB 1434 (Leno) – Vetoed (2012)
SB 662 (Figueroa) – Chapter 896, Stats. 1999
Support: Adobe; Apple Inc.; Asian Americans Advancing Justice; California Attorneys for Criminal Justice; The California Chapter of the Council on American-Islamic Relations; California Immigrant Policy Center; California Library Association; California Public Defenders Association; Consumer Action; Consumer Federation of California; Electronic Frontier Foundation; Engine; Facebook; Foursquare; Google; The Internet Archive; Internet Association; LinkedIn; Media Alliance; Mozilla; Namecheap, Inc.; National Center for Lesbian Rights; Open Technology Institute; Privacy Rights Clearinghouse; Restore the Fourth Bay Area Chapter; Small Business California; Twitter; TechFreedom; TURN
Opposition: California District Attorneys Association; California State Sheriffs’ Association
PURPOSE
The purpose of this bill is to require a search warrant or wiretap order for access to all aspects of electronic communications except where federal law allows voluntary disclosure.
The US Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched an the persons or things to be seized.” (4th Amendment of the U.S. Constitution.)
The California Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)
Existing law defines a “search warrant” as an order in writing in the name of the People, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Penal Code § 1523.)
Existing law provides that a search warrant may be issued upon any of the following grounds:
a) When the property was stolen or embezzled;
b) When the property or things were used as the means of committing a felony;
c) When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony;
e) When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or remote computing service
has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery;
h) When the property to be seized includes evidence of a violation of specified Labor Code sections;
i) When the property to be seized includes a firearm or deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
j) When the property to be seized includes a firearm or deadly weapon owned by a person apprehended because of his or her mental condition;
k) When the property to be seized is a firearm in possession of a person prohibited under the family code;
l) When the information to be received from the use of a tracking device under shows a specified violation of the Fish and Game Code or Public Resources Code;
m) When a sample of blood would show evidence of a DUI; or,
n) Starting January 1, 2016, when the property to be seized is a firearm owned by a person subject to a gun violence restraining order. (Penal Code § 1524(a).)
Existing law sets forth procedures for a search warrant issued for records of a foreign corporation that provides electronic communication services or remote computing services to the general public, where those records would reveal the identity of the customers using services, data stored by, or on behalf of, the customer, the customer’s usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications. (Penal Code § 154.2)
Existing law provides that a provider of electronic communication or remote computing service shall disclose to a governmental prosecuting or investigating agency the name, address, local and long distance toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to a customer of that service and types of services the subscriber or customer utilized when the governmental entity is granted a search warrant. (Penal Code § 1524.3(a))
Existing law provides that a provider of wire or electronic communication services or a remote computing service, upon the request of a peace officer, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant to the provider. Records shall be retained for a period of 90 days which shall be extended for an additional 90-day upon a renewed request by the peace officer. (Penal Code § 1524.3(d))
Exiting law provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things and the place to be searched. (Penal Code § 1525.)
Existing law authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)
This bill creates the Electronic Communications Privacy Act.
This bill provides that except as otherwise provided a government entity shall not do any of the following:
Compel the production of or access to electronic device information from any person or entity except the authorized processor of the device;
Compel the production of or access to electronic device information from any person or entity except the authorized processor of the device; or,
Access electronic device information by means of physical interaction or electronic communication with the device, except with the specific consent of the authorized processor of the device.
This bill provides that a government entity may compel the production of or access to electronic communication information or electronic communication with the device information by means of physical interaction with the device only pursuant to a wiretap order or pursuant to a search warrant provided that the warrant shall not compel the production of or authorize access to the contents of any electronic communication initiated after the issuance of the warrant.
This bill provides that a government entity may access electronic device information by means of the physical interaction or electronic communication with the device only as follows:
In accordance with a wiretap order or search warrant issued pursuant to the appropriate Penal Code provision, provided that a warrant shall not authorize accessing the contents of any electronic communication initiated after the issuance of the warrant;
With the specific consent of the owner or authorized possessor of the device, when a government entity is the intended recipient of an electronic communication initiated by the owner or authorized possessor of the device;
With the specific consent of the owner of the device when the device has been reported lost or stolen;
If the government entity, in good faith, believes that an emergency involving imminent danger of death or serious physical injury to any person requires access to the electronic device information; and,
If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
This bill provides that the warrant or order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including specifying the target individuals or accounts, the applications or services, the types of information, and the time periods covered.
This bill provides the warrant or order shall identify the effective date upon which the warrant is to be executed, not to exceed 10 days from the date the warrant is signed, or explicitly state whether the warrant or wiretap order encompasses any information created after its issuance.
This bill provides that the warrant or order shall comply with all other provisions of California and federal law, including any provision prohibiting, limiting or imposing additional requirements on the use of search warrants or wiretap orders.
This bill provides that when issuing any warrant or wiretap order the court may do any of the following:
Appoint a special master to ensure only information necessary to achieve the objective of the warrant or order is produced or accessed; or,
Require any information obtained through the execution of the warrant or order that is unrelated be destroyed.
This bill provides that a service provider may disclose, but is not required to disclose, electronic communication information or subscriber information when disclosure is not otherwise prohibited by law.
This bill provides that if a government entity receives electronic communication without a warrant or order, it shall delete the information within 90 days unless the entity has or obtains the specific consent or the sender of the sender or recipient about which the information was disclosed or obtains a court order authorizing the retention of the information, and specifies when the court shall order a retention order.
This bill provides that if a government entity requests that a service provider disclose information or if the government entity obtains information involving the danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall within three days after seeking the disclosure, file with the court a motion seeking approval of the requested emergency disclosures and shall set forth the facts giving rise to the emergency. If the court finds the facts did not give rise to the emergency the court shall order the information destroyed.
This bill provides that it does not limit the authority of a government to use administrative, grand jury, trial or civil discovery subpoena to do either of the following:
Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication; or,
Require an entity that provides electronic communications services to its officers, directors, employees, or agents to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee or agent of the entity.
This bill provides that except as otherwise provided the government entity that executes a warrant or wiretap order or issues and emergency request shall contemporaneously notice the identified targets that the information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought.
This bill provides that if there is no identified target of the warrant or order or emergency request, the government shall take reasonable steps to provide notice within three days to all individuals about whom information was obtained.
This bill provides that when a wire tap order or search warrant is sought the government entity may submit a request supported by an affidavit for an order delaying notification and prohibiting any party from providing information or notifying any party it is being sought. If the court determines notification may have an adverse impact the court may delay notification for up to 90 days with subsequent extensions for 90 days.
This bill provides that except as proof of a violation of this chapter, no evidence obtained or retained in violation of this chapter shall be admissible in a criminal, civil or administrative proceeding or used in an affidavit in an effort to obtain a search warrant or court order.
This bill provides that the Attorney General may commence a civil action to compel any government entity to comply with the provisions of this bill.
This bill provides that if a warrant or wiretap order does not comply with this chapter, a service provider, or any other recipient of the warrant or wiretap order, or any individual whose information is target by the warrant or wiretap order, may petition the court to void or modify the warrant or order the destruction of any information obtained in violation of the chapter.
This bill requires a government entity that obtains electronic communication information to report annually to the Attorney General specified information regarding any requests that the entity made and requires the Attorney General to publish on their website the information in a report.
This bill defines electronic communication as the transfer of signs, signals, writings, images, sounds, data or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
This bill defines electronic communication information as any information about an electronic communication or the use of an electronic communication service, including, but not limited to the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent or received, or any information pertaining to any individual or device participating in the communication including, but not limited to an IP address but does not include subscriber information.
This bill defines electronic communication service as a service that provides its subscribers or users the ability to send or receive electronic communications, including any service that acts as an intermediary in the transmission of electronic communications or stores electronic communication information.
This bill defines electronic device as a device that stores, generates, or transmits information in electronic form.
This bill defines other appropriate terms.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In its most recent status report to the court (February 2015), the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which
amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the court-ordered reduction to 137.5% of design
bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to reducing the prison population;
Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or legislative drafting error; and
Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
Need for This Bill
According to the author:
SB 178 updates California law to properly safeguard the robust constitutional privacy and free speech rights of Californians, spur innovation, and support public safety by instituting clear warrant standards for government access to electronic information.
Californians must use technology every day to connect, work, and learn. The state’s leading technology companies rely on consumer confidence in their services to help power California’s economy. California law enforcement increasingly utilizes electronic information to protect public safety. The California legislature has long been a leader in enacting laws to properly balance the rights of Californians as technology advances. But California’s statutory protections for electronic information is now very outdated.
SB 178 updates existing federal and California statutory law for the digital age and codifies federal and state constitutional rights to privacy and free speech by instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information. Each of these categories can reveal sensitive information about a Californian’s personal life: her friends and associates, her physical and mental health, her religious and political beliefs, and more.i The California Supreme Court has long held that this type of information constitutes a “virtual current biography” that merits constitutional protection. SB 178 would codify that protection into statute. SB 178 also ensures that proper notice, reporting, and enforcement provisions are also updated and in place for government access to electronic information and to ensure that the law is followed.
2. Search and Seizure Generally
The 4th Amendment of the US Constitution and Article I, Section 13 of the California Constitution protect people against unreasonable searches and seizures. Generally, the lawfulness of a search of the items in the arrestee’s immediate control is based upon the need to protect the officer and to discover evidence in the case. This has been found to include search of items when a person is booked into jail on the theories that the time lag is inconsequential; it is less of an invasion than a public search at the place of arrest; is necessary for inventory purposes; and, can protect from contraband being brought into the jail. However, if the search is remote in time and the property has been removed from the defendant’s possession and is in the control of the police, then a warrantless search has been found not to be reasonable. Numerous cases have looked at this issue of when a search incident to arrest is valid. (See for example: U.S v. Robinson (1973) 414 U.S. 218; U.S. V. Edwards (1974) 415 U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v. Belton (1981) 453 U.S. 454; People v. Hamilton (1988) 46 C. 3d 123) ) After Proposition 8 (June 1982), in California, the scope of a search incident to arrest is based on federal law; thus, California courts will look to the federal courts for precedent when deciding a case.
3. Wiretap Generally
The United States Supreme Court ruled in Katz v. United States (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576, that telephone conversations were protected by the Fourth Amendment to the United States Constitution. Intercepting a conversation is a search and seizure similar to the search of a citizen's home. Thus, law enforcement is constitutionally required to obtain a warrant based on probable cause and to give notice and inventory of the search.
In 1968, Congress authorized wiretapping by enacting Title III of the Omnibus Crime Control and Safe Streets Act. (See 18 USC Section 2510 et seq.) Out of concern that telephonic interceptions do not limit the search and seizure to only the party named in the warrant, federal law prohibits electronic surveillance except under carefully defined circumstances. The procedural steps provided in the Act require "strict adherence." (United States v. Kalustian, 529 F.2d 585, 588 (9th Cir. 1976)), and "utmost scrutiny must be exercised to determine whether wiretap orders conform to Title III.")
Both Federal and California law requires that each wiretap application include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." (18 USC Section 2518 (1)(c); Penal Code Section 629.50(d).) Often referred to as the "necessity requirement," it exists in order to limit the use of wiretaps, which are highly intrusive. (United States v. Bennett, 219 F.3d 1117, 1121 (9th Cir. 2000).) The original intent of Congress in enacting such a provision was to ensure that wiretapping was not resorted to in situations where traditional investigative techniques would suffice to expose the crime.
4. Recent Supreme Court Cases
The fact that Fourth Amendment protections extends to electronic information has been recently affirmed by the United States Supreme Court.
In United States v. Riley, 134 S. Ct. 2473 (2014) involved two cases. In the first case, the defendant (Riley) was stopped for a traffic violation which lead to his arrest on a misdemeanor firearms charge. In the search incident to his arrest the officer searched his phone and noticed terminology related to gangs. The phone was further searched at the police station and photos and videos on the phone lead to Riley being charged in connection with a shooting and the phone evidence being used to claim a gang enhancement. In the second case, as a result of his cell phone being searched the defendant’s apartment was searched and guns and drugs were found after he was arrested during a drug sale. “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” (Id. at 2484. ) The Supreme Court refused to apply to cell phone searches the precedents established for the searches of purses and wallets because “that would be like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (Id. at 2488.) Recognizing that modern cell phones’ storage capacity and multi-functionality allow them to contain “the privacies of life,” the Court required law enforcement to “get a warrant” for cell phone searches. (Id. at 2495.)
In the case of U.S. v. Jones (132 S.Ct. 945(2012)), the court found that the government’s attachment of a GPS device to a vehicle and its use of that device to monitor the vehicle’s movements constituted a search warrant under the 4th Amendment. In Jones, all members of the Court found that the law enforcement’s attachment and subsequent monitoring of a GPS on a vehicle violated the 4th Amendment, although with two concurring opinions, various judges reached that conclusion using different legal reasoning.
In Jones, the United States Supreme Court held that attaching a global positioning system (GPS) device to a person's vehicle to track his or her movements constitutes a search within the meaning of the Fourth Amendment. Authorities obtained a search warrant to install a GPS device on defendant's car as part of a drug trafficking investigation. But, the authorities did not install the device until after the warrant expired. The device was used to track the defendant's movements for almost one month. When charges were filed against defendant, he moved to suppress the GPS evidence as the product of an illegal search. The prosecution argued at trial and on appeal that a search within the meaning of the Fourth Amendment had not occurred
because Jones did not have a reasonable expectation of privacy in the location of his vehicle on public streets, which was visible to all.
The Supreme Court found the government's use of a GPS monitoring device was a search within the meaning of the Fourth Amendment, and therefore must be reasonable. The majority decision was not based on the reasonable expectation of privacy test for challenges to law enforcement surveillance, which is generally employed. (Katz v. U.S. (1967) 389 U.S. 347.) Instead, the majority based its decision on common law trespass principals, holding that attaching a GPS device to a vehicle (an "effect") for purposes of data collection constitutes a search because the government physically occupied private property for the purpose of information gathering. But five of the justices (the four members of the Alito concurrence, plus Justice Sotomayor) were critical of the trespass theory, stating the majority should have used the reasonable expectation of privacy test.
5. Warrant or Wiretap for Access to Electronic Communication or Device Information
Unless a search warrant or wiretap order is obtained, this bill would prohibit a government entity from: compelling the production of or access to electronic communications from an information service provider; compelling the production of or access to electronic device information from any person or entity except the authorized possessor of the device; or, accessing electronic device information by means of physical interaction or electronic communication with the device except with the specific consent of the authorized user.
Exceptions exist to the warrant requirement including consent of the owner of a device and when the government in good faith believes that an emergency involving imminent danger of death or serious physical injury requires access to the electronic device information or the entity reasonably believes the device is stolen.
If the government agency obtains information without a warrant or order because of an emergency the entity must within three days file a court motion seeking court approval of the requested emergency disclosures.
6. Notice to Consumer
The bill requires notice to the targets of warrant or wiretap contemporaneously with the execution of the warrant unless a court ordered delay of notice is granted for a renewable period up to 90 days.
7. Destruction of Information Obtained Voluntarily
If the government entity obtains electronic information voluntarily, this bill requires that the information be deleted in 90 days, unless the obtainer receives specific consent or obtains a court order to retain the information. The 90 day destruction requirement does not apply to information obtained by a warrant or wiretap.
8. Does not Apply to Internal Communications of a Provider
This bill provides that administrative subpoenas can still be used in an administrative, grand jury or civil discovery situation when it involves internal emails within a company. Thus, for example, in a civil action against an employer who also happens to be a service provider under this bill, emails between the plaintiff and the defendant or other information would be subject to a civil subpoena.
9. DOJ Report
This bill requires government entities that seek information under this bill to report specified information yearly to the Attorney General and requires the Attorney General to publish a report on that information on their website. This is similar to information that must be reported when a jurisdiction uses a wiretap.
10. Support
California Newspaper Publishers Association, a co-sponsor of this bill, states:
The threat of law enforcement obtaining protected, personal information from third parties without a warrant presents serious problems for newspaper publishers, editors and working journalists. California has unique protections that allow publishers, editors, and working journalists to maintain sensitive source information and unpublished notes without being subject to routine access by law enforcement and litigants.
Twitter supports this bill, stating:
Current federal law that extends fourth amendment right to electronic communications is nearly 30 years out of date. As technology and the nature of data transmission and storage has changed, the protections afforded by the Federal ECPA law has largely lapsed. Although there is broad support to ECPA reform in Washington, it is unclear if Congress will act in timely fashion to clarify Federal law. This leaves the responsibility of protecting consumer’s rights in the hands of private communication service providers.
SB 178 will modernize electronic communications protections and ensure that, in California, an individual’s digital property cannot be seized without a warrant. By acting in a timely fashion, SB 178 will set a standard for protecting the rights of users everywhere that can and should be replicated across the country.
Privacy Rights Clearinghouse states in support of this bill:
SB 178 follows the spirit of Riley and extends the warrant requirements to digital information that reveals personal and sensitive details about who we are, whom we communicate and associate with, and where we’ve been. While law enforcement will still be able to obtain this information and utilize it to solve crimes, SB 178 provides needed oversight by requiring law enforcement obtain a search warrant in order to access this wealth of information. The bill contains reasonable exceptions that allow law enforcement to obtain digital information without a warrant in an emergency.
11. Opposition
The California District Attorneys Association opposes this bill, stating:
This bill, the Electronic Communications Privacy Act, would establish a number of new procedures and reporting requirements for law enforcement agencies to comply with when seeking a search warrant for electronic communications. Unfortunately, in doing so, it undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution.
The California State Sheriffs’ Association opposes this bill, stating:
This measure has a myriad of problems: it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the Fourth Amendment.
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