CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2788

Author:(Gloria and Gabriel)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

This measure requires immigration authorities to obtain a court-ordered subpoena or judicial warrant to gain access to a customer's electrical and gas consumption data.

Major Provisions

Specifically, this bill mandates that electrical corporations, gas corporations and local publicly owned electric utility shall not share, disclose, or otherwise make accessible to any immigration authority a customer's electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

The Senate Amendments:

Senate amendments were limited to adding the following coauthors: Assembly Member Gabriel, Assembly Member Carrillo and Senator Rubio.

COMMENTS:

Privacy of Customer Utility Data – State law mandates the privacy of utility customer's data. Consistent with that mandate, the California Public Utilities Commission (CPUC) rules prohibit the investor-owned utilities, as well as third party contractors, from releasing meter usage data to any third party without the affirmative and separate consent of the customer for each request unless the party making the request possesses a subpoena issued by a court. Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer's utility data as provided in existing law and under the provisions of this measure.

Annual Report – Utilities under the CPUC's jurisdiction must annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) is requesting and receiving utility data of number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union (ACLU) highlighted that a single utility received the largest number of data demands by far and handed over the records of 4,062 customers in a single year. Under existing law, ICE may issue its own administrative subpoenas to gain access to utility data without first securing judicial or court order subpoenas.

Utility Data – In 2019, the 9th Circuit case (United States v. California, 9th Cir. 2019 (https://law.justia.com/cases/federal/appellate-courts/ca9/18-16496/18-16496-2019-04-18.html)) allowed the state to restrict access to information as long as it is not immigration status information. Utility ratepayer information, like consumption data, is not direct evidence of a customer's immigration status. Further, this decision also left intact the provisions of SB 54 (De Leon), Chapter 495, Statutes of 2017 which relate to restrictions on law enforcement sharing information with immigration authorities Utility data can reveal information about where a person lives, the number of people in a household, and when individuals are home.

There is nothing inherent in a utility customer's energy and gas usage data that indicates their immigration status. The State is allowed to regulate the disclosure of utility customers' consumption data because it is not an infringement on immigration enforcement activities. The provisions of AB this bill establish the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer's electrical or gas consumption data. This bill does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court-ordered subpoena. In so doing, this measure further protects customers' private electrical and gas consumption data.

According to the Author:

AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and has obtained the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures since through them ICE can learn a person's typical routine. Strengthening privacy protections for smart meter data builds on California's commitment to protecting our immigrant communities.

Arguments in Support:

American Civil Liberties Union: "AB 2788 expands on California's existing protections for this data by requiring a court-ordered subpoena or judicial warrant prior to its disclosure to immigration authorities. In doing so, it protects the most vulnerable residents from unregulated disclosure of their sensitive personal information for purposes against their interests, while reinforcing the importance of personal privacy for all Californians. For all of these reasons, the ACLU of California supports AB 2788."

Arguments in Opposition:

There is no registered opposition to this bill.

FISCAL COMMENTS:

This bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM UTILITIES AND ENERGY: 13-0-2

YES: Holden, Friedman, Carrillo, Cunningham, Eggman, Cristina Garcia, Eduardo Garcia, Mayes, Muratsuchi, Wood, Reyes, Santiago, Ting

ABS, ABST OR NV: Patterson, Chen

ASSEMBLY FLOOR: 62-0-17

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk‑Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Bigelow, Brough, Chen, Choi, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Mathis, Muratsuchi, Obernolte, Patterson, Quirk, Voepel, Waldron

SENATE FLOOR: 31-0-9

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Bates, Borgeas, Chang, Dahle, Grove, Jones, Melendez, Moorlach, Morrell

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Mary McDonald / U. & E. / (916) 319-2083 FN: 0003534

 THIRD READING  

Bill No: AB 2788

Author: Gloria (D)

Amended: 8/25/20 in Senate

Vote: 21

SENATE ENERGY, U. & C. COMMITTEE: 10-0, 8/3/20

AYES: Hueso, Bradford, Dodd, Hertzberg, Hill, McGuire, Rubio, Skinner, Stern, Wiener

NO VOTE RECORDED: Moorlach, Chang, Dahle

ASSEMBLY FLOOR: 62-0, 6/8/20 - See last page for vote

SUBJECT: Public utilities: cooperation with immigration authorities

SOURCE: The Utility Reform Network

DIGEST:

This bill prohibits an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

Senate Floor Amendments of 8/25/20 add a principal coauthor and other coauthors and include very minor nonsubstantive changes.

ANALYSIS:

Existing law:

1. Provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (California Constitution Article I, §1)
2. Establishes the California Public Utilities Commission (CPUC) with regulatory authority over public utilities, including electrical corporations and gas corporations. Local publicly owned electric utilities are under the direction of their governing boards. (California Constitution Article XII)
3. Prohibits an electrical corporation or gas corporation from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical or gas consumption data, as defined, except as specified. (Public Utilities Code §8380)
4. Prohibits a local publicly owned electrical utility from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical consumption data, as defined, except as specified. (Public Utilities Code §8381)
5. Defines immigration authority to include any federal, state, or local officer, employee, or person performing immigration enforcement functions. (Government Code §7284.4)
6. Finds and declares that immigrants are valuable and essential members of the California community, among other findings. (Government Code §7284)

This bill prohibits an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

Background

Privacy of customer data. Public Utilities Codes Sections 8380 and 8381 mandate the privacy of electric and gas utility customers’ data. Consistent with that mandate, the CPUC rules prohibit electric and gas utilities from releasing advanced metering (smart meter) usage data collected to any third party without the affirmative and separate consent of the customer for each request, unless the party making the request possesses a subpoena issued by a court. Electrical or gas corporations are required to use reasonable security procedures and practices to protect a customer’s unencrypted utility data from unauthorized access, destruction, use, modification or disclosure.  Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer’s utility data, as provided in Public Utilities Code Section8381.

CPUC disclosure rules. The CPUC has established disclosure rules that prohibit CPUC-jurisdictional electrical and gas utilities and entities from disclosing covered information, except pursuant to a warrant or other court order naming the customer and specific information that is sought, or except as otherwise provided or expressly authorized by state or federal law, or by order of the CPUC. The disclosure rules further require each electrical and gas corporation and entity to annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. The CPUC may make the reports publicly available without identifying the affected customer, unless making such reports public is prohibited by state or federal law or by order of the CPUC. Entities that are covered within the CPUC’s rules include: electrical corporations, gas corporations, community choice aggregators, electric service providers, and any third party that collects, stores, uses or discloses covered information.

Annual reporting to CPUC. As noted above, CPUC rules require electric and gas utilities under the CPUC’s jurisdiction to annually report the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) and other agencies are requesting and receiving utility data from a large number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union highlighted that a single utility received the largest number of data demands by far and handed over the records to ICE and other agencies of 4,062 customers in a single year. Based on the data, in most instances, these requests were based on administrative subpoenas issued by the agency seeking the data, not by a court order.

Utility data can reveal personal information. Electricity usage data can provide many benefits to the operation of the electric grid and its customers. However, privacy concerns can become issues when personal information is shared. For example, utility usage data can reveal where a person lives, the number of people in a household, and when individuals are home. Yet, there is nothing inherent in a utility customer’s information that indicates their immigration status. The state has authority to regulate utility customer information and it is not a direct infringement on immigration enforcement activities. 

AB 2788. This bill establishes the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer’s electrical or gas consumption data. AB 2788 does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court ordered subpoena. In so doing, this bill further protects customer’s private electrical and gas consumption data.

Comments

Comments from Senate Committee on Judiciary. This privacy measure falls within the jurisdiction of the Senate Committee on Judiciary. Article I Section 1 of the California Constitution explicitly grants Californians an inalienable right to privacy.  Historically, the goal for the Senate Committee on Judiciary has been to ensure that consumers’ privacy is respected and that their personal information is protected. Any access to such information should only be granted under appropriate and clearly delineated circumstances. This bill further effectuates Californians’ privacy rights by ensuring that consumers’ utility data will not be made accessible without proper legal documentation from a court of law, namely a court-ordered subpoena or judicial warrant.

Related/Prior Legislation

SB 1476 (Padilla, Chapter 497, Statutes of 2010) required an energy investor-owned utility (IOU) or publicly owned utility (POU) using advanced metering (smart meters) to protect consumers’ energy usage data from an unauthorized access or disclosure, and prohibited electric and gas IOUs and electric POUs from certain activities.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 8/24/20)

The Utility Reform Network (source)

American Civil Liberties Union of California

California Immigrant Policy Center

Consumer Federation of California

National Association of Social Workers, California Chapter

NextGen California

Oakland Privacy

Santa Barbara Women’s Political Committee

OPPOSITION: (Verified 8/24/20)

None received

ARGUMENTS IN SUPPORT: According to the author, “AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and obtain the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures, through them ICE can learn a person’s typical routine. Strengthening privacy protections for smart meter data builds on California’s commitment to protecting our immigrant communities.”

ASSEMBLY FLOOR: 62-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Bigelow, Brough, Chen, Choi, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Mathis, Muratsuchi, Obernolte, Patterson, Quirk, Voepel, Waldron

Prepared by: Nidia Bautista / E., U., & C. / (916) 651-4107

8/26/20 14:52:09

**** END ****

 THIRD READING  

Bill No: AB 2788

Author: Gloria (D)

Introduced: 2/20/20

Vote: 21

SENATE ENERGY, U. & C. COMMITTEE: 10-0, 8/3/20

AYES: Hueso, Bradford, Dodd, Hertzberg, Hill, McGuire, Rubio, Skinner, Stern, Wiener

NO VOTE RECORDED: Moorlach, Chang, Dahle

ASSEMBLY FLOOR: 62-0, 6/8/20 - See last page for vote

SUBJECT: Public utilities: cooperation with immigration authorities

SOURCE: The Utility Reform Network

DIGEST:

This bill prohibits an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

ANALYSIS:

Existing law:

1. Provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (California Constitution Article I, §1)
2. Establishes the California Public Utilities Commission (CPUC) with regulatory authority over public utilities, including electrical corporations and gas corporations. Local publicly owned electric utilities are under the direction of their governing boards. (California Constitution Article XII)
3. Prohibits an electrical corporation or gas corporation from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical or gas consumption data, as defined, except as specified. (Public Utilities Code §8380)
4. Prohibits a local publicly owned electrical utility from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical consumption data, as defined, except as specified. (Public Utilities Code §8381)
5. Defines immigration authority to include any federal, state, or local officer, employee, or person performing immigration enforcement functions. (Government Code §7284.4)
6. Finds and declares that immigrants are valuable and essential members of the California community, among other findings. (Government Code §7284)

This bill prohibits an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

Background

Privacy of customer data. Public Utilities Codes Sections 8380 and 8381 mandate the privacy of electric and gas utility customers’ data. Consistent with that mandate, the CPUC rules prohibit electric and gas utilities from releasing advanced metering (smart meter) usage data collected to any third party without the affirmative and separate consent of the customer for each request, unless the party making the request possesses a subpoena issued by a court. Electrical or gas corporations are required to use reasonable security procedures and practices to protect a customer’s unencrypted utility data from unauthorized access, destruction, use, modification or disclosure.  Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer’s utility data, as provided in Public Utilities Code Section8381.

CPUC disclosure rules. The CPUC has established disclosure rules that prohibit CPUC-jurisdictional electrical and gas utilities and entities from disclosing covered information, except pursuant to a warrant or other court order naming the customer and specific information that is sought, or except as otherwise provided or expressly authorized by state or federal law, or by order of the CPUC. The disclosure rules further require each electrical and gas corporation and entity to annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. The CPUC may make the reports publicly available without identifying the affected customer, unless making such reports public is prohibited by state or federal law or by order of the CPUC. Entities that are covered within the CPUC’s rules include: electrical corporations, gas corporations, community choice aggregators, electric service providers, and any third party that collects, stores, uses or discloses covered information.

Annual reporting to CPUC. As noted above, CPUC rules require electric and gas utilities under the CPUC’s jurisdiction to annually report the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) and other agencies are requesting and receiving utility data from a large number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union highlighted that a single utility received the largest number of data demands by far and handed over the records to ICE and other agencies of 4,062 customers in a single year. Based on the data, in most instances, these requests were based on administrative subpoenas issued by the agency seeking the data, not by a court order.

Utility data can reveal personal information. Electricity usage data can provide many benefits to the operation of the electric grid and its customers. However, privacy concerns can become issues when personal information is shared. For example, utility usage data can reveal where a person lives, the number of people in a household, and when individuals are home. Yet, there is nothing inherent in a utility customer’s information that indicates their immigration status. The state has authority to regulate utility customer information and it is not a direct infringement on immigration enforcement activities. 

AB 2788. This bill establishes the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer’s electrical or gas consumption data. AB 2788 does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court ordered subpoena. In so doing, this bill further protects customer’s private electrical and gas consumption data.

Comments

Comments from Senate Committee on Judiciary. This privacy measure falls within the jurisdiction of the Senate Committee on Judiciary. Article I Section 1 of the California Constitution explicitly grants Californians an inalienable right to privacy.  Historically, the goal for the Senate Committee on Judiciary has been to ensure that consumers’ privacy is respected and that their personal information is protected. Any access to such information should only be granted under appropriate and clearly delineated circumstances. This bill further effectuates Californians’ privacy rights by ensuring that consumers’ utility data will not be made accessible without proper legal documentation from a court of law, namely a court-ordered subpoena or judicial warrant.

Related/Prior Legislation

SB 1476 (Padilla, Chapter 497, Statutes of 2010) required an energy investor-owned utility (IOU) or publicly owned utility (POU) using advanced metering (smart meters) to protect consumers’ energy usage data from an unauthorized access or disclosure, and prohibited electric and gas IOUs and electric POUs from certain activities.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 8/4/20)

The Utility Reform Network (source)

American Civil Liberties Union of California

California Immigrant Policy Center

Consumer Federation of California

National Association of Social Workers, California Chapter

Oakland Privacy

Santa Barbara Women’s Political Committee

OPPOSITION: (Verified 8/4/20)

None received

ARGUMENTS IN SUPPORT: According to the author, “AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and obtain the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures, through them ICE can learn a person’s typical routine. Strengthening privacy protections for smart meter data builds on California’s commitment to protecting our immigrant communities.”

ASSEMBLY FLOOR: 62-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Bigelow, Brough, Chen, Choi, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Mathis, Muratsuchi, Obernolte, Patterson, Quirk, Voepel, Waldron

Prepared by: Nidia Bautista / E., U., & C. / (916) 651-4107

8/5/20 12:01:46

**** END ****

SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS

Senator Ben Hueso, Chair

2019 - 2020 Regular

Bill No: Hearing Date: 8/3/2020

SUBJECT:

DIGEST: This bill would prohibit an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

Due to the COVID-19 Pandemic and the unprecedented nature of the 2020 Legislative Session, all Senate Policy Committees are working under a compressed timeline. This timeline does not allow this bill to be referred and heard by more than one committee as a typical timeline would allow. In order to fully vet the contents of this measure for the benefit of Senators and the public, this analysis includes information from the Senate Committee on Judiciary.

ANALYSIS:

Existing law:

1. Provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (California Constitution Article I, §1)
2. Establishes the California Public Utilities Commission (CPUC) with regulatory authority over public utilities, including electrical corporations and gas corporations. Local publicly owned electric utilities are under the direction of their governing boards. (California Constitution Article XII)
3. Prohibits an electrical corporation or gas corporation from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical or gas consumption data, as defined, except as specified. (Public Utilities Code §8380)
4. Prohibits a local publicly owned electrical utility from sharing, disclosing, or otherwise making accessible to any third party a customer’s electrical consumption data, as defined, except as specified. (Public Utilities Code §8381)
5. Defines immigration authority to include any federal, state, or local officer, employee, or person performing immigration enforcement functions. (Government Code §7284.4)
6. Finds and declares that immigrants are valuable and essential members of the California community, among other findings. (Government Code §7284)

This bill would prohibit an electrical corporation, gas corporation, or local publicly owned electric utility from sharing, disclosing, or otherwise making accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

Background

Privacy of customer data. Public Utilities Codes §§8380 and 8381 mandate the privacy of electric and gas utility customers’ data. Consistent with that mandate, the CPUC rules prohibit electric and gas utilities from releasing advanced metering (smart meter) usage data collected to any third party without the affirmative and separate consent of the customer for each request, unless the party making the request possesses a subpoena issued by a court. Electrical or gas corporations are mandated to use reasonable security procedures and practices to protect a customer’s unencrypted utility data from unauthorized access, destruction, use, modification or disclosure.  Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer’s utility data as provided in Public Utilities Code §8381.

CPUC disclosure rules. The CPUC has established disclosure rules prohibit CPUC-jurisdictional electrical and gas utilities and entities from disclosing covered information, except pursuant to a warrant or other court order naming the customer and specific information that is sought or except as otherwise provided or expressly authorized by state or federal law or by order of the CPUC. The disclosure rules further require each electrical and gas corporation and entity to annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. The CPUC may make the reports publicly available without identifying the affected customer unless making such reports public is prohibited by state or federal law or by order of the CPUC. Entities that are covered within the CPUC’s rules include: electric service providers, electrical corporations, gas corporations, community choice aggregators, and any third party that collects, stores, uses or discloses covered information.

Annual report to CPUC. As noted above, CPUC rules require electric and gas utilities under the CPUC’s jurisdiction to annually report the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) and other agencies are requesting and receiving utility data from a large number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union (ACLU) highlighted that a single utility received the largest number of data demands by far and handed over the records of 4,062 customers in a single year. In most instances, these requests were based on administrative subpoenas issued by the agency seeking the data, not by a court order.

Comments from Senate Committee on Judiciary. This privacy measure falls within the jurisdiction of the Senate Committee on Judiciary. Article I Section 1 of the California Constitution explicitly grants Californians an inalienable right to privacy.  Historically, the goal for the Senate Committee on Judiciary has been to ensure that consumers’ privacy is respected and that their personal information is protected. Any access to such information should only be granted under appropriate and clearly delineated circumstances. This bill further effectuates Californians’ privacy rights by ensuring that consumers’ utility data will not be made accessible without proper legal documentation from a court of law, namely a court-ordered subpoena or judicial warrant.

Utility data can reveal personal information. Electricity usage data can provide many benefits to the operation of the electric grid and its customers. However, privacy concerns can become issues when personal information is shared. For example, utility usage data can reveal where a person lives, the number of people in a household, and when individuals are home. Yet, there is nothing inherent in a utility customer’s information that indicates their immigration status. Therefore, the state has authority to regulate utility customer information and it is not a direct infringement on immigration enforcement activities. 

AB 2788. This bill establishes the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer’s electrical or gas consumption data. AB 2788 does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court ordered subpoena. In so doing, this bill further protects customer’s private electrical and gas consumption data.

Prior/Related Legislation

SB 1476, (Padilla, Chapter 497 of 2010) requires an investor-owned utility (IOU) or publicly owned utility (POU) using advanced metering (smart meters) to protect consumers’ energy usage data from an unauthorized access or disclosure, and prohibits electric and gas IOUs and electric POUs from certain activities.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT:

The Utility Reform Network (Sponsor)

American Civil Liberties Union of California

California Immigrant Policy Center

Consumer Federation of California

National Association of Social Workers, California Chapter

Oakland Privacy

Santa Barbara Women’s Political Committee

OPPOSITION:

None received

ARGUMENTS IN SUPPORT: According to the author:

AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and obtain the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures, through them ICE can learn a person’s typical routine. Strengthening privacy protections for smart meter data builds on California’s commitment to protecting our immigrant communities.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2788

Author:(Gloria)

As Introduced Ver:February 20, 2020

Majority vote

SUMMARY:

This measure requires immigration authorities to obtain a court-ordered subpoena or judicial warrant to gain access to a customer's electrical and gas consumption data.

Major Provisions

Specifically, this bill mandates that electrical corporations, gas corporations and local publicly owned electric utility shall not share, disclose, or otherwise make accessible to any immigration authority a customer's electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

COMMENTS:

Privacy of Customer Utility Data – State law mandates the privacy of utility customer's data. Consistent with that mandate, the California Public Utilities Commission (CPUC) rules prohibit the investor-owned utilities, as well as third party contractors, from releasing meter usage data to any third party without the affirmative and separate consent of the customer for each request unless the party making the request possesses a subpoena issued by a court. Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer's utility data as provided in existing law and under the provisions of this measure.

Annual Report – Utilities under the CPUC's jurisdiction must annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) is requesting and receiving utility data of number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union (ACLU) highlighted that a single utility received the largest number of data demands by far and handed over the records of 4,062 customers in a single year. Under existing law, ICE may issue its own administrative subpoenas to gain access to utility data without first securing judicial or court order subpoenas.

Utility Data – In 2019, the 9th Circuit case (United States v. California, 9th Cir. 2019) allowed the state to restrict access to information as long as it is not immigration status information. Utility ratepayer information, like consumption data, is not direct evidence of a customer's immigration status. Further, this decision also left intact the provisions of SB 54 (De Leon), Chapter 495, Statutes of 2017 which relate to restrictions on law enforcement sharing information with immigration authorities Utility data can reveal information about where a person lives, the number of people in a household, and when individuals are home.

There is nothing inherent in a utility customer's energy and gas usage data that indicates their immigration status. The State is allowed to regulate the disclosure of utility customers' consumption data because it is not an infringement on immigration enforcement activities. The provisions of AB this bill establish the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer's electrical or gas consumption data. AB 2788 does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court-ordered subpoena. In so doing, this measure further protects customers' private electrical and gas consumption data.

According to the Author:

AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and has obtained the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures since through them ICE can learn a person's typical routine. Strengthening privacy protections for smart meter data builds on California's commitment to protecting our immigrant communities.

Arguments in Support:

American Civil Liberties Union: "AB 2788 expands on California's existing protections for this data by requiring a court-ordered subpoena or judicial warrant prior to its disclosure to immigration authorities. In doing so, it protects the most vulnerable residents from unregulated disclosure of their sensitive personal information for purposes against their interests, while reinforcing the importance of personal privacy for all Californians. For all of these reasons, the ACLU of California supports AB 2788."

Arguments in Opposition:

There is no registered opposition to this bill.

FISCAL COMMENTS:

This bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM UTILITIES AND ENERGY: 13-0-2

YES: Holden, Friedman, Carrillo, Cunningham, Eggman, Cristina Garcia, Eduardo Garcia, Mayes, Muratsuchi, Wood, Reyes, Santiago, Ting

ABS, ABST OR NV: Patterson, Chen

UPDATED:

VERSION: February 20, 2020

CONSULTANT: Mary McDonald / U. & E. / (916) 391-2083 FN: 0002796

Date of Hearing: May 28, 2020

ASSEMBLY COMMITTEE ON UTILITIES AND ENERGY

Chris Holden, Chair

ABPCA Bill Id:AB 2788 (

Author:Gloria) – As Introduced Ver:February 20, 2020

SUBJECT: Public utilities: cooperation with immigration authorities

SUMMARY: This measure requires immigration authorities to obtain a court-ordered subpoena or judicial warrant to gain access to a customer’s electrical and gas consumption data.

Specifically, this bill mandates that electrical corporations, gas corporations and local publicly owned electric utility shall not share, disclose, or otherwise make accessible to any immigration authority a customer’s electrical or gas consumption data without a court-ordered subpoena or judicial warrant.

EXISTING LAW:

1. Provides mandatory privacy protections for a customer’s electrical or gas consumption data. An electrical corporation or gas corporation shall not share, disclose, or otherwise make accessible to any third party a customer’s electrical or gas consumption data, except as provided in law or upon the consent of the customer. (PUC §8380)
2. Provides mandatory privacy protections for a customer’s electrical or gas consumption data. A local publicly owned electric utility shall not share, disclose, or otherwise make accessible to any third party a customer’s electrical or gas consumption data, except as provided in law or upon the consent of the customer. (PUC §8381)
3. Provides general provisions and definitions that among other things define electrical corporation to include every corporation or person owning, controlling, operating, or managing any electric plan for compensation within the state. (PUC §218)
4. Provides general provisions and definitions that define a gas corporation to include every corporation or person owning, controlling, operating, or managing any gas plant for compensation, except where gas is made or produced on and distributed by the maker or producer through private property alone solely for their use or that of a tenant and not for sale to others. (PUC §222)
5. Defines local publicly owned electric utility to mean a municipality or municipal corporation operating as a public utility. (PUC §224.3)
6. Defines the entities associated with cooperation with immigration authorities. (GOV §7284.4)
7. Does not preclude an electrical corporation or gas corporation from disclosing electrical or gas consumption data as required or permitted under state or federal law or by an order of the commission. (PUC §8380)
8. Defines “Immigration authority” as any federal, state, or local officer, employee, or person performing immigration enforcement functions. (GOV §7284.4 (d))
9. Provides the United States Attorney General and any federal immigration officer with the power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States. These provisions also apply to any matter which is material and relevant to the enforcement of this chapter and the administration of the Service and to that end may invoke the aid of any court of the United States. (U.S. Code §1125 (d)(4)(A))

FISCAL EFFECT: This measure is not keyed fiscal.

BACKGROUND:

Utility Data: In 2011, the California Public Utilities Commission (CPUC's) smart meter proceedings created rules regarding the steps utilities must take to protect customers’ privacy. The rules prohibit PG&E, Southern California Edison, SoCal Gas, and SDG&E, as well as third party contractors, from releasing smart meter usage data collected online to any third party without the affirmative and separate consent of the customer for each request, unless the party making the request possesses a subpoena issued by a court. CPUC rules also require utilities to release transparency reports that specify the number of legal requests for customer data that they receive annually and the number of customers whose records are disclosed.

Existing CPUC Disclosure Rules: Existing CPUC disclosure rules provide that, except as otherwise provided or expressly authorized by state or federal law or by order of the Commission, utilities under the jurisdiction of the CPUC shall not disclose covered information, except pursuant to a warrant or other court order naming the customer and specific information that is sought. Utilities under the CPUC’s jurisdiction must annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. The CPUC may make the reports publicly available without identifying the affected customer unless making such reports public is prohibited by state or federal law or by order of the Commission. Entities that are covered within the CPUC’s rules include: electric service providers, electrical corporations, gas corporations, community choice aggregators, and any third party that collects, stores, uses or discloses covered information.

United States v. California, 9^th Circuit: In 2019, the 9th Circuit case (United States v. California, 9th Cir. 2019) allowed the state to restrict access to information as long as it is not immigration status information. Utility ratepayer information, like consumption data, is not direct evidence of a customer’s immigration status. Further, this decision also left intact the provisions of SB 54 (De Leon), which relate to restrictions on law enforcement sharing information with immigration authorities. In that case, the court held that: “With respect to SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities, the panel affirmed the district court’s denial of a preliminary injunction. The panel rejected the United States’ argument that the provisions violate the doctrine of obstacle preemption and the doctrine of intergovernmental immunity, concluding that the district court did not abuse its discretion when it concluded that any obstruction caused by SB 54 is consistent with California’s prerogatives under the Tenth Amendment and the anticommandeering rule.”

COMMENTS:

Author’s Statement: “AB 2788 increases privacy protections for customer electric and gas consumption data. Smart meters give customers, and utilities, a snapshot of their energy usage throughout the day. They allow customers to have greater control of their usage and allow utilities to incentivize different energy behavior via time of day energy rates. Smart meters typically take hourly recordings of energy usage that is communicated to the utility who can then share it with their customers. This data could be used to determine where a person lives, the number of people in a household, and their comings and goings. The disclosure reports from large energy utilities have shown disturbing trends in the release of private meter data. Immigration and Customs Enforcement (ICE) has made significant requests for account information and has obtained the data through an administrative subpoena process. Undocumented immigrants are especially vulnerable to these disclosures, since through them ICE can learn a person’s typical routine. Strengthening privacy protections for smart meter data builds on California’s commitment to protecting our immigrant communities.”

Privacy of Customer Utility Data : State law mandates the privacy of utility customers data. Consistent with that mandate, the CPUC rules prohibit PG&E, Southern California Edison, SoCal Gas, and SDG&E, as well as third party contractors, from releasing smart meter usage data collected online to any third party without the affirmative and separate consent of the customer for each request, unless the party making the request possesses a subpoena issued by a court. Electrical or gas corporations are mandated to use reasonable security procedures and prictices to protect a customer’s unencrypted utility data from unauthorized access, destruction, use, modification or disclosure.  Customer consent may be verified through an electronic signature authorization process pursuant to the Uniform Electronic Transactions Act of California. Local publicly owned electric utilities are also subject to the limitations associated with the release of their customer’s utility data as provided in existing law and under the provisions of this measure.

Annual Report: Utilities under the CPUC’s jurisdiction must annually report to the CPUC the number of demands received for disclosure of customer data pursuant to a legal process and the number of customers whose records were disclosed. These transparency reports have revealed that Immigration and Customs Enforcement (ICE) is requesting and receiving utility data from a large number of customers. Upon reviewing these transparency reports, the American Civil Liberties Union (ACLU) highlighted that a single utility received the largest number of data demands by far and handed over the records of 4,062 customers in a single year. Under existing law, ICE may issue their own administrative subpoenas to gain access to utility data without securing judicial or court order subpoenas.

Utility Data: Utility data can reveal where a person lives, the number of people in a household, and when individuals are home. Yet, there is nothing inherent in a utility customer’s information that indicates their immigration status. Therefore, the state is allowed to regulate utility customer information and it is not a direct infringement on immigration enforcement activities.  This measure establishes the requirement that immigration authorities must have a court-ordered subpoena or judicial warrant in order to receive a customer’s electrical or gas consumption data. AB 2788 does not prohibit access to utility data, rather it allows immigration officials access to this data via judicial warrant or court ordered subpoena. In so doing, this measure further protects customer’s private electrical and gas consumption data

Relevant Legislation:

SB 54, (de León, Chapter 495 of 2017) Law enforcement: sharing data.

SB 31, (Lara, Chapter 826 of 2017) California Religious Freedom Act: state agencies: disclosure of religious affiliation information.

AB 699 (O’Donnell, Chapter 493 of 2017) Educational equity: immigration and citizenship status.

AB 4 (Ammiano, Chapter 570 of 2013) State government: federal immigration policy enforcement.

AB 2792 (Bonta, Chapter 768 of 2016) Local law enforcement agencies: federal immigration policy enforcement: ICE access.

SB 1476, (Padilla, Chapter 497 of 2010) Public utilities: customer privacy: advanced metering infrastructure.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union/northern California/southern California/San Diego and Imperial

Counties

California Immigrant Policy Center

National Association of Social Workers, California Chapter

Oakland Privacy

Santa Barbara Women's Political Committee

The Utility Reform Network

Opposition

None on file.

Analysis Prepared by: Mary McDonald / U. & E. /