Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to maintain a law enforcement contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency, the subject of the search warrant is information associated with an account on the social media platform, and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users and would make its provisions operative on July 1, 2025.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to maintain a law enforcement contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency, the subject of the search warrant is information associated with an account on the social media platform, and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users and would make its provisions operative on July 1, 2025.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to maintain a law enforcement contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users. users and would make its provisions operative on July 1, 2025.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to maintain a law enforcement contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to maintain a law enforcement contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to, at all times, make available by telephone to to maintain a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information. contact process that, among other things, makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to, at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information. The bill would, except as prescribed, also require a social media platform to immediately comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency if and the subject of the search warrant is information associated with an account on the social media platform owned and that information is controlled by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Existing law generally regulates a social media platform, including by requiring a social media platform to clearly and conspicuously state whether it has a mechanism for reporting violent posts that is available to users and nonusers of the social media platform and to include a link to that reporting mechanism, as prescribed.

This bill would require a social media platform to, at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information. The bill would would, except as prescribed, also require a social media platform to immediately comply with a search warrant provided to the social media platform by a law enforcement agency if the subject of the search warrant is an account on the social media platform owned by a user of the social media platform.

This bill would not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Existing law establishes procedures for the filing of a petition relating to a measure to be submitted to the voters with the elections official and for elections officials and the Secretary of State to determine the validity and numerical sufficiency of the signatures submitted with the petition.

This bill would make a technical, nonsubstantive change to these provisions.

 UNFINISHED BUSINESS  

Bill No: SB 918

Author: Umberg (D), et al.

Amended: 8/22/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24

AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener

SENATE FLOOR: 39-0, 5/20/24

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Min

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 8/29/24 (Pursuant Senate Rule 29.10)

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

ASSEMBLY FLOOR: 75-0, 8/28/24 - See last page for vote

SUBJECT: Law enforcement contact process: search warrants

SOURCE: Author

DIGEST:

This bill requires specified social media platforms to provide a staffed hotline to respond to law enforcement requests for information, and generally requires those platforms to comply with a search warrant within 72 hours if specified conditions are met.

Assembly Amendments

specify the timeframe in which platforms must respond to warrants and create exceptions to the response requirement for existing warrant procedures.

ANALYSIS:

Existing law:

1. 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 and the persons or things to be seized.” (U.S. Const., Fourth Amend; see also Cal. Const. art. 1, § 13.)
2. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
   1. A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application, as specified.
   2. The service or application allows users to do all of the following:
      1. Construct a public or semipublic profile for purposes of signing into and using the service.
      2. Populate a list of other users with whom an individual shares a social connection within the system.
      3. Create or post content viewable by others, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the users with content generated by others. (Bus. & Prof. Code § 22945(a)(3).)
3. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law, as specified. (Bus. & Prof. Code § 22945.5.)
4. Defines a “search warrant” as a written order 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. (Pen. Code § 1523.)
5. 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.)
6. Defines “adverse result” with respect to notification of the existence of a search warrant, as:
   1. Danger to the life or physical safety of an individual.
   2. A flight from prosecution.
   3. The destruction of or tampering with evidence.
   4. The intimidation of potential witnesses.
   5. Serious jeopardy to an investigation or undue delay of a trial. (Pen. Code § 1524.2(a)(2).)
7. Provides that a foreign corporation may be required to produce records in response to a search warrant in five days if there is a showing that the failure to produce the records within that timeframe would cause an adverse result. Enables a court to reasonably extend that time period for good cause shown. (Pen. Code § 1524.2(b)(2).)
8. 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.)
9. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code § 1529(a).)
10. Enacts the California Electronic Communications Privacy Act (CalECPA), which generally prohibits a government entity from compelling the production of or access to electronic communication information from a service provider or to electronic device information from any person or entity other than the authorized possessor of the device, absent a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to specified conditions, or pursuant to an order for a pen register or trap and trace device, as specified. (Pen. Code § 1546 et seq.)
11. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code § 1524.4(a), (b).)
12. Provides that a court may order the destruction of information gathered pursuant to a warrant under CalECPA and requires that information voluntarily provided under same must, within 90 days, be destroyed. (Pen. Code § 1546.1(e)(2), (g).)
13. Provides that a California corporation or a corporation whose principal executive offices are located in California that provides electronic communications services shall not, in California, provide records, information, facilities, or assistance in accordance with the terms of a specified legal order issued by, or pursuant to, the procedures of another state or a political subdivision thereof that relates to an investigation into or enforcement of a prohibited violation. (Pen. Code § 1546.5(a).)
14. Provides that a California corporation or a corporation whose principal executive offices are located in California, 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 specified legal order issued by, or pursuant to, the procedures of another state or a political subdivision thereof, except where the corporation knew or should have known that the legal order relates to an investigation into or enforcement of a prohibited violation. (Pen. Code § 1546.5(c).)
15. Establishes the Reproductive Rights Law Enforcement Act, which requires law enforcement agencies to report specified anti-reproductive rights crimes, as defined, to the DOJ, and requires every law enforcement agency to develop and implement written policies and standards for officers’ responses to anti-reproductive rights calls. (Pen. Code §§13775, et. seq.)

This bill:

1. Includes the following definitions:
   1. “Law enforcement agency” means a law enforcement agency in the state.
   2. “Law enforcement liaison” means a natural person employed by a social media platform who serves as a point of contact with law enforcement agencies.
   3. “Search warrant” means a search warrant duly executed pursuant to existing law.
   4. “Social media platform” has the same meaning as in existing law (See (2) above).
2. Provides that a social media platform shall maintain a law enforcement contact process that does all of the following:
   1. Makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information.
   2. Provides continual availability of the law enforcement contact process.
   3. Includes a method to provide status updates to a requesting law enforcement agency on a request for information or a warrant, as provided.
3. Except as provided by any other law, including the Reproductive Rights Law Enforcement Act and a specified provision of CalECPA, provides that a social media platform shall comply with a search warrant within 72 hours if both of the following apply:
   1. The search warrant is provided to the social media platform by a law enforcement agency.
   2. The subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
4. Provides that a court may reasonably extend the time required to comply with a search warrant pursuant to the above if the court makes a written finding that the social media platform has shown good cause for that extension and that an extension would not cause an adverse result, as defined.
5. Provides that the provision of the bill do not apply to a social media platform with fewer than 1,000,000 discrete monthly users.
6. Provides that its provisions become operative July 1, 2025.

Comments

Background

According to the Author, “As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.”

As social media in its many forms has become more ubiquitous, so too have unscrupulous and nefarious actors seeking to commit illegal acts through various social media platforms. Emerging research and reporting has documented how social media fuels gun violence, harassment, cyberbullying, stalking and other abuse among users, especially teens. Additionally, data collected by the Federal Trade Commission (FTC) shows that consumers have reporting losing $2.7 billion to social media scams since 2021. And as identified by the Author, it is well documented that social media platforms are commonly used to facilitate the sale and purchase of illicit drugs, again, primarily among teenagers and young adults. The criminal behavior that occurs on social media platforms is facilitated, if not exacerbated, by Section 230 of the federal Communications Decency Act of 1996, which insulates the platforms from legal liability for user posts.

Search Warrants and CalECPA

Both the United States and the California constitution’s guarantee the right of all persons to be secure from unreasonable searches and seizures. This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. In general, a search is not valid unless it is conducted pursuant to a warrant. A search warrant may not be issued without probable cause, which exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty." The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one.

With regard to social media searches, most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages. According to one federal court, whether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred. Thus, the more secure the privacy settings on a social media account, the greater likelihood that the account’s content is constitutionally protected. In a recent opinion regarding the constitutionality of search warrants for accounts of individuals affiliated with a transnational criminal organization, the Fourth Circuit Court of Appeals reasoned that:

We cannot read the Fourth Amendment to allow the indiscriminate search of many years of intimate communications. And because of the inherent interconnectedness of social media, permitting unbridled rummaging through any one user's account can reveal an extraordinary amount of personal information about individuals uninvolved in any criminal activity. It is not only courts that are struggling to strike a balance between privacy and security in the rapidly changing digital domain, but society as a whole. When criminal offenders use social media to organize their enterprises and evade detection, it would seem unreasonable to disable law enforcement from using those same media to apprehend and prosecute them. To hold otherwise would arbitrarily tip the scales away from law and justice for the benefit of increasingly sophisticated criminal schemes. But at the same time, there comes a point when the Fourth Amendment must emphatically yell STOP, lest we render obsolete the hallowed notion of a secure enclave for personal affairs. (United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 342-343).

In California, Penal Code section 1523 defines a “search warrant” as an order, in writing, signed by a magistrate, commanding a peace officer to search for personal property and bring it before a magistrate. Penal Code section 1524 provides the statutory grounds for the issuance of warrants. Under these provisions, a search warrant may be issued "[w]hen property or things were used as the means to commit a felony." There are other enumerated circumstances that authorize a search warrant regardless of whether the crime was a felony or misdemeanor, such as "[w]hen the property subject to search was stolen or embezzled.” Additionally, Penal Code section 1524 provides that a search warrant may be issued "[w]hen 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." A "public offense" is defined as crimes which include felonies, misdemeanors, and infractions.

California law contains additional protections for citizens’ digital information. Namely, in 2015, the Governor signed SB 178 (Leno, Chapter 651, Statutes of 2015), which enacted the California Electronic Communications Privacy Act (CalECPA), a comprehensive digital privacy law which took effect on January 1, 2016. Centrally, CalECPA requires law enforcement agencies to obtain a warrant or wiretap order before they can access any “electronic communication information,” which the law defines in broad terms to include emails, digital documents, text messages, location information, and other digital information stored in the cloud. The law protects all aspects of electronic communication information, not just its contents, but also metadata information relating to the sender, recipient, format, time, date, and location of the communications, including IP addresses. CalECPA also limits the ability of California law enforcement to obtain information directly from a smartphone or similar device, or to track them.

Effect of This Bill

This bill, commencing July 1, 2025, requires social media platforms with at least 1 million discrete monthly users to maintain a law enforcement contact process that includes a staffed hotline for law enforcement personnel for the purposes of receiving and responding to requests for information and a method to provide status updates to a requesting law enforcement agency on a request for information or a warrant. Under the bill, this contact process must be continually available. Additionally, if a search warrant is provided to a social media platform by a law enforcement agency and the subject of the warrant is information 1) associated with an account on the platform and 2) controlled by a user of the platform, the platform must comply with the search warrant within 72 hours, unless a limited exception related to other existing search warrant requirements applies. The bill permits a court to reasonably extend the time requested to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension, and that an extension would not cause an adverse result.

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

SUPPORT: (Verified 8/28/24)

California Narcotic Officers' Association

California Reserve Peace Officers Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers' Association

Deputy Sheriffs' Association of Monterey County

Fullerton Police Officers' Association

Los Angeles School Police Management Association

Los Angeles School Police Officers Association

Murrieta Police Officers' Association

Newport Beach Police Association

Novato Police Officers Association

Orange County Sheriff's Department

Palos Verdes Police Officers Association

Peace Officers Research Association of California (PORAC)

Placer County Deputy Sheriffs' Association

Pomona Police Officers' Association

Riverside Police Officers Association

Riverside Sheriffs' Association

Santa Ana Police Officers Association

Upland Police Officers Association

OPPOSITION: (Verified 8/28/24)

ACLU California Action

Electronic Frontier Foundation

Technet

TransLatin@ Coalition

ARGUMENTS IN SUPPORT: According to a group of peace officer associations, writing jointly:

“The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media. Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities. News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.”

ARGUMENTS IN OPPOSITION: Groups writing in opposition have underscored several perceived deficiencies in the bill – centrally, the 72 hour timeline. According to ACLU California Action:

“We are concerned that SB 918 would undermine these protections, and potentially violate foundational constitutional privacy safeguards. Most concerning is SB 918’s requirement that social media platforms “comply within 72 hours” when they receive a search warrant relating to an account held by a user of the platform. Put simply, ensuring that people’s rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant within 72 hours without undermining people’s statutory and constitutional rights.”

Technet further argues that the bill’s requirements are duplicative in light of CalECPA:

“Finally, we believe social media platforms are already required to provide a law enforcement contact process as required by Penal Code section 1546.4, making this bill’s requirements to provide telephone access to a representative redundant and burdensome. This section applies to service providers that are subject to CalECPA (Penal Code section 1546), which includes social media platforms. As required by this section, platforms must, at a minimum, maintain a process that provides a specific contact mechanism for law enforcement personnel, provides continual availability, and provides a method to provide status updates to the requesting law enforcement agency. In practice, many platforms exceed these requirements by providing an online portal for law enforcement liaisons to have their questions answered by social media platforms and to allow them to serve legal process electronically. Platforms typically provide law enforcement entities with special log in information specific to their agency to access this information and process.”

ASSEMBLY FLOOR: 75-0, 8/28/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Bryan, Cervantes, Kalra, Ortega

Prepared by: Alex Barnett / PUB. S. /

8/29/24 18:27:57

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 918

Author: Umberg (D), et al.

Amended: 8/22/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24

AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener

SENATE FLOOR: 39-0, 5/20/24

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Min

ASSEMBLY FLOOR: 56-0, 8/28/24 - Roll call not available

SUBJECT: Law enforcement contact process: search warrants

SOURCE: Author

DIGEST:

This bill requires a social media platform with over one million discrete monthly active users to: (1) provide a staffed hotline to respond to law enforcement requests for information; and (2) comply with legal search warrants executed under state law within 72 hours, unless a court finds good cause to grant an extension.

Assembly Amendments

clarify the requirement that a social media platform provide a staffed hotline for law enforcement personnel; added a 72-hour compliance window for a social media platform to comply with a search warrant; and clarified that the bill’s compliance timeline applies only to search warrants issued under state law and relating to information associated with an account on, and controlled by a user on, the platform.

ANALYSIS:

Existing constitutional 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 that no warrant shall issue without 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:

1. Defines “content” as statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application; and excludes media put on a service or application exclusively for the purpose of cloud storage, transmitting files, or file collaboration. (Bus. & Prof. Code, § 22945(a)(1).)
2. Defines “controlled substance” as a drug, substance, or immediate precursor that is listed on one of the schedules in the Health and Safety Code. (Bus. & Prof. Code, § 22945(a)(2); Health & Saf. Code, §§ 11007, 11054-11058.)
3. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets specified criteria. (Bus. & Prof. Code, § 22945(a)(3).)
4. Requires a social media platform that operates in the state to create, and publicly post on the platform’s website, a policy statement that includes specified information, including the social media platform’s policy on the use of the social media platform to illegally distribute a controlled substance and a link to the social media platform’s reporting mechanism for illegal or harmful content or behavior on the platform, if one exists. (Bus. & Prof. Code, § 22945(b).)
5. Requires a person or entity operating a social media platform in the state to retain data on content on which it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia. A social media platform shall retain such content and the username of the violating account for a period of 90 days; except that the platform is not required to retain content removed in violation of the policy if there is a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental care, or reproductive health care that is lawful under California law. (Bus. & Prof. Code, § 22945(d).)
6. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law.
   1. If the platform has a reporting mechanism, the person must report the content and request that it be removed before seeking the order, and the court may not act upon the request until 48 hours have passed since the request was made.
   2. If the platform does not have a reporting mechanism, the person may bring, and the court may act on, the action at any time.
   3. The court shall award court costs and reasonable attorney’s fees to a prevailing plaintiff. (Bus. & Prof. Code, § 22945.5.)
7. 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 them 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.)
8. 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.)
9. 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.)
10. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1529(a).)
11. Establishes the Electronics Communications Privacy Act (CalEPCA), which addresses the production of access to electronic communications pursuant to a warrant. (Pen. Code, pt. 2, tit. 12, ch. 3.6, §§ 1546 et seq.)
12. Sets forth the process by which a government entity may compel production of, or access to, electronic communication information and electronic device information, including through a warrant. (Pen. Code, §§ 1546.1, 1546.2.)
13. Provides that a person whose electronic information was obtained in violation of CalEPCA may move to suppress the electronic information at trial, as specified. (Pen. Code, § 1546.6.)
14. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code, § 1524.4(a), (b).)
15. Requires every covered service provider to file a statement with the Attorney General describing the law enforcement contact process maintained in 15), and to provide updates as soon as practicable after changing its process. (Pen. Code, § 1524.4(b)(3).)
16. Requires the Attorney General to consolidate the statements received pursuant to 16) into one discrete record and regularly make the record available to local law enforcement agencies. A statement filed or distributed pursuant to 15)-17) is confidential and shall not be disclosed pursuant to any state law, including the California Public Records Act (Gov. Code, div. 10, tit. 1, §§ 7920.000 et seq.). (Pen. Code, § 1524.4(c), (d).)

This bill:

1. Defines the following terms:
   1. “Law enforcement agency” means a law enforcement agency in the state.
   2. “Law enforcement liaison” means a natural person employed by a social media platform who serves as a point of contact with law enforcement agencies.
   3. “Search warrant” means a search warrant duly executed pursuant to Chapter 3 of Title 12 of Part 2 of the Penal Code.
   4. “Social media platform” has the same meaning as defined in Business and Professions Code section 22945.
2. Requires a social media platform to maintain a law enforcement contact process that does all of the following:
   1. Makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information.
   2. Provides continual availability of the law enforcement contact process.
   3. Includes a method to provide status updates to a requesting law enforcement agency on a request for information or a warrant provided pursuant to 3).
3. Requires, except as provided by any other law, a social media platform to comply with a search warrant within 72 hours if both of the following apply:
   1. The search warrant is provided to the social media platform by a law enforcement agency.
   2. The subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform
4. Provides that a court may reasonably extend the time required to comply with a search warrant pursuant to 3) if the court makes a written finding that the social media platform has shown good cause for that extension and that an extension would not cause an adverse result, as defined.
5. Provides that 2)-4) do not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Comments

Data indicate that social media platforms have become an increasingly popular avenue for the distribution and sale of illegal drugs, especially to younger generations. This includes fentanyl, a synthetic opioid that is 50 to 100 times stronger than morphine. The Drug Enforcement Administration has warned about the threat of drug trafficking on social media platforms to adolescents and young adults.

Recent laws have required more transparency from social media platforms about their policies and required them to report quantitative data on their content moderation efforts. Existing law also governs how a law enforcement agency may obtain information from a social media platform: CalECPA prohibits a government entity from accessing electronic device information from service providers, including social media platforms, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[1] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[2] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[3]

According to the author, social media platforms are still not reliably responding to notifications from users and law enforcement about drug dealers on the platforms, allowing drug dealers to continue to sell illicit drugs on the platform for weeks or months after being made aware of the illegal conduct. This bill is therefore intended to require more expeditious responses from social media platforms to law enforcement. Specifically, this bill requires social media platforms, as defined, with one million discrete monthly users to have a law enforcement contact process that meets specified criteria, including a staffed hotline available to law enforcement personnel. The bill also requires social media platforms to comply with legal search warrants executed under state law within 72 hours, unless a court finds good cause to grant an extension. The bill makes clear that the compliance requirement does not supersede existing law relating to when a search warrant may not be complied with, including the Reproductive Rights Law Enforcement Act.

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

SUPPORT: (Verified 8/28/24)

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

CA Coalition of School Safety Professionals

CA Narcotic Officers’ Association

CA Reserve Police Officers’ Association

Claremont Police Officers’ Association

Corona Police Officers’ Association

Culver City Police Officers’ Association

Drug Induced Homicide Organization

DSA Monterey County

Fullerton Police Officers’ Association

LA School Police Management Association

LA Schools Police Association

Murrieta Police Officers’ Association

Newport Beach Police Association

Novato Police Officers’ Association

Orange County Sheriff’s Department

Palos Verdes Police Officers’ Association

Peace Officers’ Research Association of California

Placer County DSA

Pomona Police Officers’ Association

Riverside Police Officers’ Association

Riverside Sheriffs’ Association

Santa Ana Police Officers’ Association

Upland Police Officers’ Association

OPPOSITION: (Verified 8/28/24)

ACLU California Action

Electronic Frontier Foundation

Internet.Works California

TechNet

ARGUMENTS IN SUPPORT: According to the Orange County Sheriff’s Department:

A factor in the proliferation of fentanyl is the use of social media for illicit drug sales. Drug Enforcement Agency Administrator Milgram has called social media platforms the “superhighway of drugs.” We have seen this firsthand during our law enforcement investigations. Drug-related deaths in Orange County are investigated with the intent of identifying the drug’s supplier for prosecution. In several cases we have investigated, social media was the means for making the drug sale. One challenge we face in the work to bring these investigations to a conclusion is the short time frame records with regard to the drug transactions are available. Some of the most prominent social media companies only retain communication records for a limited period of time. As a result, communications related to a fatal drug sale can often be gone before law enforcement has time to access them. By providing law enforcement with a 24/7 designated liaison at large social media companies and requiring immediate compliance with a search warrant, SB 918 would help take away a drug trafficker’s advantage and help our investigators have the time necessary to identify a suspect.

ARGUMENTS IN OPPOSITION: According to TechNet:

Our members fully cooperate with law enforcement and comply with legal process such as subpoenas and search warrants in a timely manner. This bill however would force platforms to comply with these requests within 72 hours, which will weaken user privacy, could compromise the security of users’ data, and represents a concerning weakening of process for social media users.

Prior to complying, platforms verify that any legal process they’ve received is valid, that they have access and control of the information that is the subject, and in some cases provide required notice to the user. The 72-hour timeline in SB 918 overemphasizes compliance rather than validating and ensuring that users and their information is protected. Due to their size, many platforms receive thousands of requests for information or legal process. This bill would conflict with platforms’ efforts to verify these requests, prevent fraudulent access, and protect their users’ information…

Finally, we believe social media platforms are already required to provide a law enforcement contact process as required by Penal Code section 1546.4, making this bill’s requirements to provide telephone access to a representative redundant and burdensome. This section applies to service providers that are subject to CalECPA (Penal Code section 1546), which includes social media platforms. As required by this section, platforms must, at a minimum, maintain a process that provide a specific contact mechanism for law enforcement personnel, provides continual availability, and provides a method to provide status updates to the requesting law enforcement agency. In practice, many platforms exceed these requirements by providing an online portal for law enforcement liaisons to have their questions answered by social media platforms and to allow them to serve legal process electronically. Platforms typically provide law enforcement entities with special login information specific to their agency to access this information and process.

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

8/28/24 22:06:34

**** END ****

1. Pen. Code, § 1546.1(a), (c). ↑

2. Id., § 1546.1(c). ↑

3. See id., § 1546.1(e)(2), (g). ↑

SENATE THIRD READING

STR Bill Id:SB 918

Author:(Umberg)

As Amended Ver:August 22, 2024

Majority vote

SUMMARY

Requires social media platforms with over 1one million discrete monthly active users to provide a staffed hotline to respond to law enforcement requests for information. Requires platforms to comply with search warrants within 72 hours, unless a court finds good cause to grant an extension.

Major Provisions

1. Requires a social media platform with over one million discrete monthly active users to:
   1. Maintain a law enforcement contact process that continuously makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information, as specified.
   2. Except as required by any other law, including specified protections for reproductive rights, comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
2. Provides that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result.

COMMENTS

Crime and social media. Whereas the European Union requires platforms to take down certain illegal content, Section 230 of the federal Communications Decency Act of 1996 provides civil immunity for online platforms based on third-party content and for the removal of content in certain circumstances.^[1] As the United States Department of Justice has stated, "[t]he combination of significant technological changes since 1996 and the expansive interpretation that courts have given Section 230. . . has left online platforms both immune for a wide array of illicit activity on their services and free to moderate content with little transparency or accountability."^[2] Social media platforms in the United States thus have virtually no duty to remove deplorable, tortious, or even criminal content.^[3]

The accountability vacuum created by Section 230, along with the anonymity and widespread reach of social platforms, some of which have encrypted or disappearing messages, make them a useful medium for criminal activity. Although comprehensive statistics are not available, it is well documented that platforms are commonly used to recruit gang members and terrorists; groom victims of sexual abuse and sex trafficking; circulate child pornography and revenge pornography; cyberstalk, harass, and intimidate victims; gain access to personal information for identify theft; and facilitate the sale and distribution of illegal drugs, particularly to younger social media users.^[4]

Search warrants. The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides, "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."^[5] "The 'basic purpose of this Amendment …' … 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.'"^[6] "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause."^[7] The Fourth Amendment is enforced in part through motions to exclude evidence from an unlawful search.

"Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages."^[8] "[W]hether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred."^[9] "When a social media user disseminates his postings and information to the public, [these postings] are not protected by the Fourth Amendment" because anyone can view them; thus, a search warrant is not necessary to seize those messages.^[10] On the other hand, when a user adopts more secure privacy settings on social media, this reflects an intent to keep information private that could trigger the obligation to obtain a search warrant.^[11]

The California Electronic Communications Privacy Act ("CalECPA") prohibits government entities from accessing electronic device information from service providers, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[12] "Service providers" under CalECPA are entities that "provide[] to its subscribers or users" the ability to send, receive, or store electronic communication information.^[13] That includes social media platforms under this bill.^[14] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[15] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[16]

According to the Author

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

Arguments in Support

A coalition of law enforcement agencies writes:

. . . [F]entanyl is now the number one cause of death for people ages 18-45. The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media.

Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities.

News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.

SB 918 will require social media to cooperate with law enforcement and work together to prevent harms like unintentional overdoses.

Arguments in Opposition

ACLU California Action writes:

Put simply, ensuring that people's rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant within 72 hours without undermining people's statutory and constitutional rights.

This process of careful examination of the warrant, deliberation over its scope, and coordination with the requesting law-enforcement entity takes on special importance as states pass laws criminalizing the pursuit and provision of specific types of health care, like abortions and gender-affirming care. People seeking these types of care are understandably fearful about the impact of states targeting people seeking abortions or gender-affirming care. And California law prohibits companies from responding to out-of-state process targeting reproductive health care services or gender-affirming care. (See, e.g., Pen. Code § 13778.3(f).) SB 918 is limited to law enforcement agencies in the state, but that nuance may not be immediately apparent. Therefore commanding social-media companies to respond within 72 hours rather than after an adequate amount of time to protect people's rights, could chill people's use of social media to discuss or research their health care options and their ultimate ability to freely seek care, despite California holding itself out as a state of sanctuary for people seeking reproductive and gender-affirming care.

FISCAL COMMENTS

As currently in print, this bill is keyed nonfiscal.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Min

ASM PRIVACY AND CONSUMER PROTECTION: 11-0-0

YES: Bauer-Kahan, Joe Patterson, Bryan, Dixon, Hoover, Irwin, Lowenthal, Ortega, Ward, Wicks, Wilson

UPDATED

VERSION: August 22, 2024

CONSULTANT: Josh Tosney / P. & C.P. / (916) 319-2200 FN: 0004171

1. 47 U.S.C. Section 230. ↑

2. "Section 230—Nurturing Innovation or Fostering Unaccountability" (June, 2020), https://www.justice.gov/ag/file/1072971/dl?inline=. ↑

3. See Rustad and Koenig, "The Case for a CDA Section 230 Notice-and-Takedown Duty" (Spring, 2023) 23 Nev.L.J. 533, 556. ↑

4. Ibid.; Hoffman, "Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar" (May 19, 2022) N.Y. Times, https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

5. U.S. Const., 4th Amend. ↑

6. Carpenter v. United States (2018) 585 U.S. 296, 303, citation omitted. ↑

7. Id. at p. 304. ↑

8. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 333. ↑

9. United States v. Weber (D.Mont. 2022) 599 F.Supp.3d 1025, 1033. ↑

10. United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525. ↑

11. Ibid. ↑

12. Penal Code Section 1546.1(a), (c). ↑

13. Pen. Code § 1546(e), (j). ↑

14. See Bus. & Prof. Code § 22945(a)(3). ↑

15. Pen. Code § 1546.1(c). ↑

16. See Pen. Code § 1546.1(e)(2), (g). ↑

SENATE THIRD READING

STR Bill Id:SB 918

Author:(Umberg)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Requires social media platforms with over one million discrete monthly active users to provide a staffed hotline to respond to law enforcement requests for information. Requires platforms to comply with search warrants within 72 hours, unless a court finds good cause to grant an extension.

Major Provisions

1. Requires a social media platform with over one million discrete monthly active users to:
   1. Maintain a law enforcement contact process that continuously makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information, as specified.
   2. Except as required by any other law, including specified protections for reproductive rights, comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
2. Provides that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result.

COMMENTS

Crime and social media. Whereas the European Union requires platforms to take down certain illegal content, Section 230 of the federal Communications Decency Act of 1996 provides civil immunity for online platforms based on third-party content and for the removal of content in certain circumstances.^[1] As the United States Department of Justice has stated, "[t]he combination of significant technological changes since 1996 and the expansive interpretation that courts have given Section 230. . . has left online platforms both immune for a wide array of illicit activity on their services and free to moderate content with little transparency or accountability."^[2] Social media platforms in the United States thus have virtually no duty to remove deplorable, tortious, or even criminal content.^[3]

The accountability vacuum created by Section 230, along with the anonymity and widespread reach of social platforms, some of which have encrypted or disappearing messages, make them a useful medium for criminal activity. Although comprehensive statistics are not available, it is well documented that platforms are commonly used to recruit gang members and terrorists; groom victims of sexual abuse and sex trafficking; circulate child pornography and revenge pornography; cyberstalk, harass, and intimidate victims; gain access to personal information for identify theft; and facilitate the sale and distribution of illegal drugs, particularly to younger social media users.^[4]

Search warrants. The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides, "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."^[5] "The 'basic purpose of this Amendment …' … 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.'"^[6] "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause."^[7] The Fourth Amendment is enforced in part through motions to exclude evidence from an unlawful search.

"Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages."^[8] "[W]hether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred."^[9] "When a social media user disseminates his postings and information to the public, [these postings] are not protected by the Fourth Amendment" because anyone can view them; thus, a search warrant is not necessary to seize those messages.^[10] On the other hand, when a user adopts more secure privacy settings on social media, this reflects an intent to keep information private that could trigger the obligation to obtain a search warrant.^[11]

The California Electronic Communications Privacy Act ("CalECPA") prohibits government entities from accessing electronic device information from service providers, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[12] "Service providers" under CalECPA are entities that "provide[] to its subscribers or users" the ability to send, receive, or store electronic communication information.^[13] That includes social media platforms under this bill.^[14] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[15] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[16]

According to the Author

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

Arguments in Support

A coalition of law enforcement agencies writes:

. . . [F]entanyl is now the number one cause of death for people ages 18-45. The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media.

Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities.

News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.

SB 918 will require social media to cooperate with law enforcement and work together to prevent harms like unintentional overdoses.

Arguments in Opposition

ACLU California Action writes:

Put simply, ensuring that people's rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant within 72 hours without undermining people's statutory and constitutional rights.

This process of careful examination of the warrant, deliberation over its scope, and coordination with the requesting law-enforcement entity takes on special importance as states pass laws criminalizing the pursuit and provision of specific types of health care, like abortions and gender-affirming care. People seeking these types of care are understandably fearful about the impact of states targeting people seeking abortions or gender-affirming care. And California law prohibits companies from responding to out-of-state process targeting reproductive health care services or gender-affirming care. (See, e.g., Pen. Code Section 13778.3(f).) SB 918 is limited to law enforcement agencies in the state, but that nuance may not be immediately apparent. Therefore commanding social-media companies to respond within 72 hours rather than after an adequate amount of time to protect people's rights, could chill people's use of social media to discuss or research their health care options and their ultimate ability to freely seek care, despite California holding itself out as a state of sanctuary for people seeking reproductive and gender-affirming care.

FISCAL COMMENTS

As currently in print, this bill is keyed nonfiscal.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Min

ASM PRIVACY AND CONSUMER PROTECTION: 11-0-0

YES: Bauer-Kahan, Joe Patterson, Bryan, Dixon, Hoover, Irwin, Lowenthal, Ortega, Ward, Wicks, Wilson

UPDATED

VERSION: August 19, 2024

CONSULTANT: Josh Tosney / P. & C.P. / (916) 319-2200 FN: 0004171

1. 47 U.S.C. Section 230. ↑

2. "Section 230—Nurturing Innovation or Fostering Unaccountability" (June, 2020), https://www.justice.gov/ag/file/1072971/dl?inline=. ↑

3. See Rustad and Koenig, "The Case for a CDA Section 230 Notice-and-Takedown Duty" (Spring, 2023) 23 Nev.L.J. 533, 556. ↑

4. Ibid.; Hoffman, "Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar" (May 19, 2022) N.Y. Times, https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

5. U.S. Const., 4th Amend. ↑

6. Carpenter v. United States (2018) 585 U.S. 296, 303, citation omitted. ↑

7. Id. at p. 304. ↑

8. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 333. ↑

9. United States v. Weber (D.Mont. 2022) 599 F.Supp.3d 1025, 1033. ↑

10. United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525. ↑

11. Ibid. ↑

12. Penal Code Section 1546.1(a), (c). ↑

13. Penal Code Section 1546(e), (j). ↑

14. See Business & Professions Code Section 22945(a)(3). ↑

15. Penal Code Section 1546.1(c). ↑

16. See Penal Code Section 1546.1(e)(2), (g). ↑

SENATE THIRD READING

STR Bill Id:SB 918

Author:(Umberg)

As Amended Ver:August 8, 2024

Majority vote

SUMMARY

Requires social media platforms with over one million discrete monthly active users to provide a staffed hotline to respond to law enforcement requests for information. Requires platforms to comply with search warrants within 72 hours, unless a court finds good cause to grant an extension.

Major Provisions

1. Requires a social media platform with over one million discrete monthly active users to:
   1. Maintain a law enforcement contact process that continuously makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information, as specified.
   2. Except as required by any other law, including the Reproductive Rights Law Enforcement Act, comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
2. Provides that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result.

COMMENTS

Crime and social media. Whereas the European Union requires platforms to take down certain illegal content, Section 230 of the federal Communications Decency Act of 1996 provides civil immunity for online platforms based on third-party content and for the removal of content in certain circumstances.^[1] As the United States Department of Justice has stated, "[t]he combination of significant technological changes since 1996 and the expansive interpretation that courts have given Section 230. . . has left online platforms both immune for a wide array of illicit activity on their services and free to moderate content with little transparency or accountability."^[2] Social media platforms in the United States thus have virtually no duty to remove deplorable, tortious, or even criminal content.^[3]

The accountability vacuum created by Section 230, along with the anonymity and widespread reach of social platforms, some of which have encrypted or disappearing messages, make them a useful medium for criminal activity. Although comprehensive statistics are not available, it is well documented that platforms are commonly used to recruit gang members and terrorists; groom victims of sexual abuse and sex trafficking; circulate child pornography and revenge pornography; cyberstalk, harass, and intimidate victims; gain access to personal information for identify theft; and facilitate the sale and distribution of illegal drugs, particularly to younger social media users.^[4]

Search warrants. The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides, "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."^[5] "The 'basic purpose of this Amendment …' … 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.'"^[6] "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause."^[7] The Fourth Amendment is enforced in part through motions to exclude evidence from an unlawful search.

"Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages."^[8] "[W]hether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred."^[9] "When a social media user disseminates his postings and information to the public, [these postings] are not protected by the Fourth Amendment" because anyone can view them; thus, a search warrant is not necessary to seize those messages.^[10] On the other hand, when a user adopts more secure privacy settings on social media, this reflects an intent to keep information private that could trigger the obligation to obtain a search warrant.^[11]

The California Electronic Communications Privacy Act ("CalECPA") prohibits government entities from accessing electronic device information from service providers, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[12] "Service providers" under CalECPA are entities that "provide[] to its subscribers or users" the ability to send, receive, or store electronic communication information.^[13] That includes social media platforms under this bill.^[14] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[15] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[16]

According to the Author

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

Arguments in Support

A coalition of law enforcement agencies writes:

. . . [F]entanyl is now the number one cause of death for people ages 18-45. The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media.

Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities.

News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.

SB 918 will require social media to cooperate with law enforcement and work together to prevent harms like unintentional overdoses.

Arguments in Opposition

ACLU California Action writes:

Put simply, ensuring that people's rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant within 72 hours without undermining people's statutory and constitutional rights.

This process of careful examination of the warrant, deliberation over its scope, and coordination with the requesting law-enforcement entity takes on special importance as states pass laws criminalizing the pursuit and provision of specific types of health care, like abortions and gender-affirming care. People seeking these types of care are understandably fearful about the impact of states targeting people seeking abortions or gender-affirming care. And California law prohibits companies from responding to out-of-state process targeting reproductive health care services or gender-affirming care. (See, e.g., Penal Code Section 13778.3(f).) SB 918 is limited to law enforcement agencies in the state, but that nuance may not be immediately apparent. Therefore commanding social-media companies to respond within 72 hours rather than after an adequate amount of time to protect people's rights, could chill people's use of social media to discuss or research their health care options and their ultimate ability to freely seek care, despite California holding itself out as a state of sanctuary for people seeking reproductive and gender-affirming care.

FISCAL COMMENTS

As currently in print, this bill is keyed nonfiscal.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Min

ASM PRIVACY AND CONSUMER PROTECTION: 11-0-0

YES: Bauer-Kahan, Joe Patterson, Bryan, Dixon, Hoover, Irwin, Lowenthal, Ortega, Ward, Wicks, Wilson

UPDATED

VERSION: August 8, 2024

CONSULTANT: Josh Tosney / P. & C.P. / (916) 319-2200 FN: 0003788

1. 47 U.S.C. Section 230. ↑

2. ""Section 230—Nurturing Innovation or Fostering Unaccountability"" (June, 2020), https://www.justice.gov/ag/file/1072971/dl?inline=. ↑

3. See Rustad and Koenig, ""The Case for a CDA Section 230 Notice-and-Takedown Duty"" (Spring, 2023) 23 Nev.L.J. 533, 556. ↑

4. Ibid.; Hoffman, ""Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar"" (May 19, 2022) N.Y. Times, https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

5. U.S. Const., 4th Amend. ↑

6. Carpenter v. United States (2018) 585 U.S. 296, 303, citation omitted. ↑

7. Id. at p. 304. ↑

8. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 333. ↑

9. United States v. Weber (D.Mont. 2022) 599 F.Supp.3d 1025, 1033. ↑

10. United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525. ↑

11. Ibid. ↑

12. Pen. Code Section 1546.1(a), (c). ↑

13. Pen. Code Section 1546(e), (j). ↑

14. See Bus. & Prof. Code Section 22945(a)(3). ↑

15. Pen. Code Section 1546.1(c). ↑

16. See Pen. Code Section 1546.1(e)(2), (g). ↑

SENATE THIRD READING

STR Bill Id:SB 918

Author:(Umberg)

As Amended Ver:June 20, 2024

Majority vote

SUMMARY

Requires social media platforms with over 1 million discrete monthly active users to provide a staffed hotline to respond to law enforcement requests for information. Requires platforms to comply with search warrants within 72 hours, unless a court finds good cause to grant an extension.

Major Provisions

1. Requires a social media platform with over 1 million discrete monthly active users to:
   1. Maintain a law enforcement contact process that continuously makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information, as specified.
   2. Except as required by any other law, comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
2. Provides that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result.

COMMENTS

Crime and social media. Whereas the European Union requires platforms to take down certain illegal content, Section 230 of the federal Communications Decency Act of 1996 provides civil immunity for online platforms based on third-party content and for the removal of content in certain circumstances.^[1] As the United States Department of Justice has stated, "[t]he combination of significant technological changes since 1996 and the expansive interpretation that courts have given Section 230. . . has left online platforms both immune for a wide array of illicit activity on their services and free to moderate content with little transparency or accountability."^[2] Social media platforms in the United States thus have virtually no duty to remove deplorable, tortious, or even criminal content.^[3]

The accountability vacuum created by Section 230, along with the anonymity and widespread reach of social platforms, some of which have encrypted or disappearing messages, make them a useful medium for criminal activity. Although comprehensive statistics are not available, it is well documented that platforms are commonly used to recruit gang members and terrorists; groom victims of sexual abuse and sex trafficking; circulate child pornography and revenge pornography; cyberstalk, harass, and intimidate victims; gain access to personal information for identify theft; and facilitate the sale and distribution of illegal drugs, particularly to younger social media users.^[4]

Search warrants. The Fourth Amendment of the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides, "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."^[5] "The 'basic purpose of this Amendment …' … 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.'"^[6] "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause."^[7] The Fourth Amendment is enforced in part through motions to exclude evidence from an unlawful search.

"Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages."^[8] "[W]hether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred."^[9] "When a social media user disseminates his postings and information to the public, [these postings] are not protected by the Fourth Amendment" because anyone can view them; thus, a search warrant is not necessary to seize those messages.^[10] On the other hand, when a user adopts more secure privacy settings on social media, this reflects an intent to keep information private that could trigger the obligation to obtain a search warrant.^[11]

The California Electronic Communications Privacy Act ("CalECPA") prohibits government entities from accessing electronic device information from service providers, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[12] "Service providers" under CalECPA are entities that "provide[] to its subscribers or users" the ability to send, receive, or store electronic communication information.^[13] That includes social media platforms under this bill.^[14] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[15] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[16]

According to the Author

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

Arguments in Support

A coalition of law enforcement agencies writes:

. . . [F]entanyl is now the number one cause of death for people ages 18-45. The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media.

Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities.

News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.

SB 918 will require social media to cooperate with law enforcement and work together to prevent harms like unintentional overdoses.

Arguments in Opposition

ACLU California Action writes:

Put simply, ensuring that people's rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant within 72 hours without undermining people's statutory and constitutional rights.

This process of careful examination of the warrant, deliberation over its scope, and coordination with the requesting law-enforcement entity takes on special importance as states pass laws criminalizing the pursuit and provision of specific types of health care, like abortions and gender-affirming care. People seeking these types of care are understandably fearful about the impact of states targeting people seeking abortions or gender-affirming care. And California law prohibits companies from responding to out-of-state process targeting reproductive health care services or gender-affirming care. (See, e.g., Penal Code Section 13778.3(f).) SB 918 is limited to law enforcement agencies in the state, but that nuance may not be immediately apparent. Therefore commanding social-media companies to respond within 72 hours rather than after an adequate amount of time to protect people's rights, could chill people's use of social media to discuss or research their health care options and their ultimate ability to freely seek care, despite California holding itself out as a state of sanctuary for people seeking reproductive and gender-affirming care.

FISCAL COMMENTS

As currently in print, this bill is keyed nonfiscal.

VOTES

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Min

ASM PRIVACY AND CONSUMER PROTECTION: 11-0-0

YES: Bauer-Kahan, Joe Patterson, Bryan, Dixon, Hoover, Irwin, Lowenthal, Ortega, Ward, Wicks, Wilson

UPDATED

VERSION: June 20, 2024

CONSULTANT: Josh Tosney / P. & C.P. / (916) 319-2200 FN: 0003729

1. 47 U.S.C. Section 230. ↑

2. "Section 230—Nurturing Innovation or Fostering Unaccountability" (June, 2020), https://www.justice.gov/ag/file/1072971/dl?inline=. ↑

3. See Rustad and Koenig, "The Case for a CDA Section 230 Notice-and-Takedown Duty" (Spring, 2023) 23 Nev.L.J. 533, 556. ↑

4. Ibid.; Hoffman, "Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar" (May 19, 2022) N.Y. Times, https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

5. U.S. Const., 4th Amend. ↑

6. Carpenter v. United States (2018) 585 U.S. 296, 303, citation omitted. ↑

7. Id. at p. 304. ↑

8. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 333. ↑

9. United States v. Weber (D.Mont. 2022) 599 F.Supp.3d 1025, 1033. ↑

10. United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525. ↑

11. Ibid. ↑

12. Pen. Code Section 1546.1(a), (c). ↑

13. Pen. Code Section 1546(e), (j). ↑

14. See Bus. & Prof. Code Section 22945(a)(3). ↑

15. Pen. Code Section 1546.1(c). ↑

16. See Pen. Code Section 1546.1(e)(2), (g). ↑

Date of Hearing: July 2, 2024

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Rebecca Bauer-Kahan, Chair

SBPCA Bill Id:SB 918

Author:(Umberg) – As Amended Ver:June 20, 2024

SENATE VOTE: 39-0

SUBJECT: Law enforcement liaisons: search warrants

SYNOPSIS

Shielded by the sweeping immunity provided by Section 230 of the federal Communications Decency Act of 1996, some social media platforms have become useful forums for trafficking in a wide array of illicit activities. Of particular concern are reports that social media platforms are not reliably responding to notifications from users and law enforcement about drug dealers on the platforms, allowing drug dealers to continue to sell illicit drugs, especially fentanyl—the synthetic opioid that is 50 to 100 times stronger than morphine—on the platform for weeks or months after being made aware of the illegal conduct.

This bill seeks to make social media platforms with over a million discrete monthly active users more responsive to California-based law enforcement entities. First, the bill requires platforms to provide a liaison to respond to law enforcement requests for information. Second, the bill requires platforms to comply with search warrants within 72 hours, as specified. The bill grants courts the ability to extend this period for good cause, provided that doing so will not result in an adverse result that jeopardizes the investigation.

The bill is sponsored by the author and is supported by numerous law enforcement organizations. The bill is opposed by ACLU California Action, the Electronic Frontier Foundation, and Internet.Works California. Recent amendments that introduce more flexibility into the process established under the bill appear to have addressed, if not resolved, their principal concerns.

SUMMARY: Requires platforms to provide a liaison to respond to law enforcement requests for information and to comply with search warrants within 72 hours. Specifically, this bill:

1. Requires a social media platform with over 1 million discrete monthly active users to:
   1. At all times, make available by telephone to a California law enforcement agency a law enforcement liaison—a natural person who serves as the point of contact with law enforcement agencies—for the purpose of receiving, and responding to, requests for information.
   2. Except as required by any other law, comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.
2. Provides that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result.

EXISTING LAW:

1. 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 and the persons or things to be seized.” (U.S. Const., Fourth Amend; see also Cal. Const. art. 1, § 13.)
2. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
   1. A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
      1. A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
   2. The service or application allows users to do all of the following:
      1. Construct a public or semipublic profile for purposes of signing into and using the service.
      2. Populate a list of other users with whom an individual shares a social connection within the system.
      3. Create or post content viewable by others, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the users with content generated by others. (Bus. & Prof. Code § 22945(a)(3).)
3. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law.
   1. If the platform has a reporting mechanism, the person must report the content and request that it be removed before seeking the order, and the court may not act upon the request until 48 hours have passed since the request was made.
   2. If the platform does not have a reporting mechanism, the person may bring, and the court may act on, the action at any time.
   3. The court shall award court costs and reasonable attorney’s fees to a prevailing plaintiff. (Bus. & Prof. Code § 22945.5.)
4. Defines a “search warrant” as a written order 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. (Pen. Code § 1523.)
   
5. 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.)
6. Defines “adverse result” with respect to notification of the existence of a search warrant, as:
   1. Danger to the life or physical safety of an individual.
   2. A flight from prosecution.
   3. The destruction of or tampering with evidence.
   4. The intimidation of potential witnesses.
   5. Serious jeopardy to an investigation or undue delay of a trial. (Pen. Code § 1524.2(a)(2).)
7. Provides that a foreign corporation may be required to produce records in response to a search warrant in five days if there is a showing that the failure to produce the records within that timeframe would cause an adverse result. Enables a court to reasonably extend that time period for good cause shown. (Pen. Code § 1524.2(b)(2).)
8. 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.)
9. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code § 1529(a).)
10. Enacts the California Electronic Communications Privacy Act (CalECPA), which generally prohibits a government entity from compelling the production of or access to electronic communication information from a service provider or to electronic device information from any person or entity other than the authorized possessor of the device, absent a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to specified conditions, or pursuant to an order for a pen register or trap and trace device, as specified. (Pen. Code § 1546 et seq.)
11. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code § 1524.4(a), (b).)
12. Provides that a court may order the destruction of information gathered pursuant to a warrant under CalECPA and requires that information voluntarily provided under same must, within 90 days, be destroyed. (Pen. Code § 1546.1(e)(2), (g).)

FISCAL EFFECT: As currently in print, this bill is keyed nonfiscal.

COMMENTS:

1) Crime and social media. Whereas the European Union requires platforms to take down certain illegal content, Section 230 of the federal Communications Decency Act of 1996 provides civil immunity for online platforms based on third-party content and for the removal of content in certain circumstances.^[1] As the United States Department of Justice has stated, “[t]he combination of significant technological changes since 1996 and the expansive interpretation that courts have given Section 230. . . has left online platforms both immune for a wide array of illicit activity on their services and free to moderate content with little transparency or accountability.”^[2] Social media platforms in the United States thus have virtually no duty to remove deplorable, tortious, or even criminal content.^[3]

The accountability vacuum created by Section 230, along with the anonymity and widespread reach of social platforms, some of which have encrypted or disappearing messages, make them a useful medium for criminal activity. Although comprehensive statistics are not available, it is well documented that platforms are commonly used to recruit gang members and terrorists; groom victims of sexual abuse and sex trafficking; circulate child pornography and revenge pornography; cyberstalk, harass, and intimidate victims; gain access to personal information for identify theft; and facilitate the sale and distribution of illegal drugs, particularly to younger social media users.^[4]

2) Search warrants. The Fourth Amendment of the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides, “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.”^[5] “The ‘basic purpose of this Amendment …’ … ‘is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’”^[6] “When an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”^[7] The Fourth Amendment is enforced in part through motions to exclude evidence from an unlawful search.

“Most federal courts to rule on the issue have agreed that Facebook and other social media users have a reasonable expectation of privacy in content that they exclude from public access, such as private messages.”^[8] “[W]hether someone can assert a subjective expectation of privacy in their social media accounts depends on the privacy settings they had in place at the time the intrusion occurred.”^[9] “When a social media user disseminates his postings and information to the public, [these postings] are not protected by the Fourth Amendment” because anyone can view them; thus, a search warrant is not necessary to seize those messages.^[10] On the other hand, when someone posts using a more secure privacy setting on social media, this reflects an intent to keep information private, and so that information may be constitutionally protected.^[11]

Because social media accounts may contain a vast history of an individual’s private, sensitive communications, law enforcement searches in this space present unique challenges under the Fourth Amendment. To illustrate, the Fourth Circuit Court of Appeals, raising concern over the lack of temporal restrictions in search warrants for the accounts of six men affiliated with a transnational criminal organization who were convicted of sex trafficking a 13-year-old girl, recently wrote:

[…] The reasonableness standard that is so central to the Fourth Amendment necessitates that we permit the government to thwart these emerging criminal tactics with novel investigatory tools of its own. Warrants for social media data are one such tool, as they empower law enforcement officers to reveal the activities of criminal conspirators, disrupt their illicit plots, and bring them to justice. But while social media warrants can support invaluable police work, . . . they also provide significant potential for abuse. We cannot read the Fourth Amendment to allow the indiscriminate search of many years of intimate communications. And because of the inherent interconnectedness of social media, permitting unbridled rummaging through any one user's account can reveal an extraordinary amount of personal information about individuals uninvolved in any criminal activity.

It is not only courts that are struggling to strike a balance between privacy and security in the rapidly changing digital domain, but society as a whole. When criminal offenders use social media to organize their enterprises and evade detection, it would seem unreasonable to disable law enforcement from using those same media to apprehend and prosecute them. To hold otherwise would arbitrarily tip the scales away from law and justice for the benefit of increasingly sophisticated criminal schemes. But at the same time, there comes a point when the Fourth Amendment must emphatically yell STOP, lest we render obsolete the hallowed notion of a secure enclave for personal affairs.^[12]

California provides additional protections in this space. The California Electronic Communications Privacy Act (“CalECPA”) prohibits government entities from accessing electronic device information from service providers, unless it does so pursuant to a judicial order for, e.g. a warrant, wiretap order, or tracking device search warrant.^[13] “Service providers” under CalECPA are entities that “provide[] to its subscribers or users” the ability to send, receive, or store electronic communication information.^[14] That includes social media platforms under this bill.^[15] Under CalECPA, people who are the target of a search warrant may seek relief in court to void or modify the warrant.^[16] CalECPA additionally provides, in certain circumstances, for the destruction of information gathered pursuant to its provisions after the purpose for which the information was collected has been served.^[17]

1. Author’s statement. According to the author:

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

4) What this bill does. This bill seeks to make social media platforms with over 1 million discrete monthly active users more responsive to law enforcement. The bill does so in two ways.

First, the bill requires platforms, at all times, to make available by telephone to a California law enforcement agency a law enforcement liaison—a natural person who serves as the point of contact with law enforcement agencies—for the purpose of receiving, and responding to, requests for information. This provision is similar to the existing provision in CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:

• Provide a specific contact mechanism for law enforcement personnel.
• Provide continual availability of the law enforcement contact process.
• Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance.^[18]

Second, unless another law requires otherwise, the bill requires platforms to comply with a search warrant within 72 hours if the search warrant is provided to the social media platform by a law enforcement agency and the subject of the search warrant is information associated with an account on the social media platform and that information is controlled by a user of the social media platform.

In light of opposition and stakeholder concerns, the author recently amended the bill to grant more flexibility in a platform’s response to a warrant. A primary concern for opposition was the requirement in the prior version of the bill that platforms “immediately comply” with a search warrant. In response, the author changed this to give the platform 72 hours to comply.

Additionally, the author amended the bill to provide that a court may reasonably extend the time required to comply with a search warrant if the court makes a written finding that the social media platform has shown good cause for the extension and has shown that it would not cause an adverse result. “Adverse result” for these purposes is defined as: danger to the life or physical safety of an individual; a flight from prosecution; the destruction of or tampering with evidence; the intimidation of potential witnesses; or serious jeopardy to an investigation or undue delay of a trial.^[19] In line with other provisions relating to warrants, this expressly clarifies that platforms may seek judicial oversight in responding to warrants that may be infeasible, vague, or unduly broad in scope.

5) Amendments. Section 1524.4 of the Penal Code requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process similar to the liaison process required under this bill. Consistent with suggestions from stakeholders, the author has agreed to amendments that would incorporate these provisions. The amendments are as follows:

[. . .]

22946.1. (a) A social media platform shall maintain a law enforcement contact process that does all of the following:

(A) Makes available a staffed hotline for law enforcement personnel for purposes of receiving, and responding to, requests for information.

(B) Provides continual availability of the law enforcement contact process.

(C) Includes a method to provide status updates to a requesting law enforcement agency on a request for information or a warrant provided pursuant to subdivision (b)., at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information.

[. . .]

6) Related legislation. SB 60 (Umberg; Ch. 698, Stats. 2023) authorizes a person to seek an order requiring a social media platform to remove content that includes an offer to transport, sell, furnish, administer, or give away a controlled substance in violation of specified law.

AB 1027 (Petrie-Norris; Ch. 824, Stats. 2023) required social media platforms to include in their already-required policy statements a general description of the platform’s policy on the retention of electronic communication information and sharing of specified information; and added to existing terms of service reporting requirements an obligation to disclose policies on addressing the distribution of controlled substances on the platform and data on the number of times such content was flagged and actioned.

AB 1628 (Ramos; Ch. 432, Stats. 2022) requires, until January 1, 2028, a social media company to create and publicly post a policy statement that includes, among other things, the platform’s policy on the use of the platform to illegally distribute a controlled substance.

SB 1056 (Umberg; Ch. 881, Stats. 2022) required social media platforms, as defined, to clearly and conspicuously state whether they have mechanisms for reporting violent posts, as defined; and allows a person who is the target, or who believes they are the target, of a violent post to seek an injunction to have the violent post removed.

SB 1121 (Leno; Ch. 541, Stats. 2016) modified CalECPA to authorize a government entity to access, without a warrant, the location or phone number of an electronic device used to call 911; allowed a government entity to retain voluntarily received electronic communication information beyond 90 days if the service provider or subscriber is or discloses information to, a correctional or detention facility; and excluded driver's licenses and other identification cards from its provisions.

AB 1993 (Irwin; Ch. 514, Stats. 2016) required certain technology companies covered under CalECPA to maintain a law enforcement contact process to coordinate with law enforcement agency investigations, as specified.

SB 178 (Leno; Ch. 651, Stats. 2015) enacted CalECPA, which establishes the procedures for obtaining information from an electronic communication service provider about a user of the service.

ARGUMENTS IN SUPPORT: A coalition of law enforcement agencies writes:

. . . [F]entanyl is now the number one cause of death for people ages 18-45. The drug overdose epidemic has continued to worsen in the United States over the last several years as synthetic opioids, particularly illicit fentanyl, enter the market. Of specific concern is the primary method through which many individuals, especially teenagers, unlawfully purchase illicit fentanyl and other controlled substances—social media.

Drug traffickers solicit customers via social media platforms such as Snapchat, Facebook, Instagram, Twitter, TikTok, and YouTube. In many cases, traffickers and buyers alike use social media features such as temporary or disappearing posts that help conceal their activities.

News outlets have reported that there are known drug dealers using social media to sell drugs. However, even after law enforcement and concerned users make the platform aware, platforms are slow to respond in removing accounts.

SB 918 will require social media to cooperate with law enforcement and work together to prevent harms like unintentional overdoses.

ARGUMENTS IN OPPOSITION: ACLU California Action, writing about a prior version of the bill that would have required platforms to “immediately” comply with a warrant, stated:

People of all ages rely on social-media platforms for everything from accessing information and connecting with others, to paying for goods, using transportation, getting work done, and speaking out about issues of the day. Without adequate privacy protections, those platforms can be co-opted to surveil us online and intrude into our private lives. The vast stores of information social-media platforms hold about people—from their posts to their networks of associations and relationships to their private messages—are subject to some of the strongest privacy protections under the law, and for good reason.

We are concerned that SB 918 would undermine these protections, and potentially violate foundational constitutional privacy safeguards. Most concerning is SB 918’s requirement that social media platforms “immediately comply” when they receive a search warrant relating to an account held by a user of the platform. Section 22946.1(b). While SB 918 does not define “immediately,” its dictionary definition is “without delay.”

Put simply, ensuring that people’s rights are protected takes time. When a platform receives a search warrant, they must carefully review the warrant, perform a reasonable search for responsive material, and understand the scope of those records in order to determine whether the warrant is tailored as the law requires. The platform should also notify the target of the search, to allow the person to take action to protect their rights. The platform might also communicate with law enforcement about the scope and breadth of the warrant and seek and obtain legal advice from counsel regarding the breadth of the search warrant. It might also be necessary for the platform or the target of the warrant to seek relief in court to void or modify the warrant. There is no way for platforms to comply with a search warrant “immediately” without undermining people’s statutory and constitutional rights.

REGISTERED SUPPORT / OPPOSITION:

Support

Peace Officers Research Association of California (PORAC)

Support If Amended

California District Attorneys Association

Opposition

ACLU California Action
Electronic Frontier Foundation
Technet-technology Network

Analysis Prepared by: Josh Tosney / P. & C.P. / (916) 319-2200

1. 47 U.S.C. § 230. ↑

2. “Section 230—Nurturing Innovation or Fostering Unaccountability” (June, 2020), https://www.justice.gov/ag/file/1072971/dl?inline=. ↑

3. See Rustad and Koenig, “The Case for a CDA Section 230 Notice-and-Takedown Duty” (Spring, 2023) 23 Nev.L.J. 533. ↑

4. Ibid.; Hoffman, “Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar” (May 19, 2022) N.Y. Times, https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

5. U.S. Const., 4th Amend. ↑

6. Carpenter v. United States (2018) 585 U.S. 296, 303, citation omitted. ↑

7. Id. at p. 304. ↑

8. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 333. ↑

9. United States v. Weber (D.Mont. 2022) 599 F.Supp.3d 1025, 1033. ↑

10. United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525. ↑

11. Ibid. ↑

12. United States v. Zelaya-Veliz (4th Cir. 2024) 94 F.4th 321, 342-343. ↑

13. Pen. Code § 1546.1(a), (c). ↑

14. Pen. Code § 1546(e), (j). ↑

15. See Bus. & Prof. Code § 22945(a)(3). ↑

16. Pen. Code § 1546.1(c). ↑

17. See Pen. Code § 1546.1(e)(2), (g). ↑

18. Pen. Code § 1524.4(a), (b). ↑

19. Pen. Code § 1524.2(a)(2). ↑

 THIRD READING  

Bill No: SB 918

Author: Umberg (D)

Amended: 5/2/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24

AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener

SUBJECT: Law enforcement liaisons: search warrants

SOURCE: Author

DIGEST:

This bill requires social media platforms, as defined, with one million or more discrete monthly users to make a law enforcement liaison available by telephone and immediately respond to search warrants, as specified.

ANALYSIS: Existing constitutional 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 that no warrant shall issue without 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 law:

1. Defines “content” as statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application; and excludes media put on a service or application exclusively for the purpose of cloud storage, transmitting files, or file collaboration. (Bus. & Prof. Code, § 22945(a)(1).)
2. Defines “controlled substance” as a drug, substance, or immediate precursor that is listed on one of the schedules in the Health and Safety Code. (Bus. & Prof. Code, § 22945(a)(2); Health & Saf. Code, §§ 11007, 11054-11058.)
3. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
   1. A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
      1. A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
   2. The service or application allows users to do all of the following:
      1. Construct a public or semipublic profile for purposes of signing into and using the service.
      2. Populate a list of other users with whom an individual shares a social connection within the system.
      3. Create or post content viewable by others, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the users with content generated by others. (Bus. & Prof. Code, § 22945(a)(3).)
   3. Provides that “public or semipublic internet-based service or application” excludes a service or application used to facilitate communication within a business or enterprise among employees or affiliates of the business or enterprise, provided that access to the service or application is restricted to employees or affiliates of the business enterprise using the service or application. (Bus. & Prof. Code, § 22945(a)(4).)
4. Requires a social media platform that operates in the state to create, and publicly post on the platform’s website, a policy statement that includes specified information, including the social media platform’s policy on the use of the social media platform to illegally distribute a controlled substance and a link to the social media platform’s reporting mechanism for illegal or harmful content or behavior on the platform, if one exists. (Bus. & Prof. Code, § 22945(b).)
5. Requires a person or entity operating a social media platform in the state to retain data on content on which it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia. A social media platform shall retain such content and the username of the violating account for a period of 90 days; except that the platform is not required to retain content removed in violation of the policy if there is a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental care, or reproductive health care that is lawful under California law. (Bus. & Prof. Code, § 22945(d).)
6. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law.
   1. If the platform has a reporting mechanism, the person must report the content and request that it be removed before seeking the order, and the court may not act upon the request until 48 hours have passed since the request was made.
   2. If the platform does not have a reporting mechanism, the person may bring, and the court may act on, the action at any time.
   3. The court shall award court costs and reasonable attorney’s fees to a prevailing plaintiff. (Bus. & Prof. Code, § 22945.5.)
7. 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 them 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.)
8. 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.)
9. 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.)
10. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1529(a).)
11. Establishes the Electronics Communications Privacy Act (CalEPCA), which addresses the production of access to electronic communications pursuant to a warrant. (Pen. Code, pt. 2, tit. 12, ch. 3.6, §§ 1546 et seq.)
12. Defines the following relevant terms:
    1. “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.
    2. “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; but does not include subscriber information.
    3. “Electronic communications 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 stored electronic communications.
    4. “Electronic information” means electronic communication information or electronic device information.
    5. “Service provider” means a person or entity offering an electronic communication service.
13. Sets forth the process by which a government entity may compel production of, or access to, electronic communication information and electronic device information, including through a warrant. (Pen. Code, §§ 1546.1, 1546.2.)
14. Provides that a person whose electronic information was obtained in violation of CalEPCA may move to suppress the electronic information at trial, as specified. (Pen. Code, § 1546.6.)
15. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code, § 1524.4(a), (b).)
16. Requires every covered service provider to file a statement with the Attorney General describing the law enforcement contact process maintained in 15), and to provide updates as soon as practicable after changing its process. (Pen. Code, § 1524.4(b)(3).)
17. Requires the Attorney General to consolidate the statements received pursuant to 16) into one discrete record and regularly make the record available to local law enforcement agencies. A statement filed or distributed pursuant to 15)-17) is confidential and shall not be disclosed pursuant to any state law, including the California Public Records Act (Gov. Code, div. 10, tit. 1, §§ 7920.000 et seq.). (Pen. Code, § 1524.4(c), (d).)

This bill:

1. Defines the following terms:
   1. “Law enforcement agency” means a law enforcement agency in the state.
   2. “Law enforcement liaison” means a natural person employed by a social media platform who serves as a point of contact with law enforcement agencies.
   3. “Social media platform” has the same meaning as defined in Business and Professions Code section 22945.
2. Requires a social media platform to, at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information.
3. Requires, except as provided by any other law, a social media platform to immediately comply with a search warrant provided to a social media platform by a law enforcement agency if the subject of the search warrant is an account on the social media platform owned by a user of the social media platform.
4. Provides that 2)-3) do not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Comments

Evidence shows that social media platforms have become an increasingly popular avenue for the distribution and sale of illegal drugs, especially to younger generations. This includes fentanyl, a synthetic opioid that is 50 to 100 times stronger than morphine. The Drug Enforcement Administration has warned about the threat of drug trafficking on social media platforms to adolescents and young adults.

Recent laws have required more transparency from social media platforms about their policies and required them to report quantitative data on their content moderation efforts. According to the author, however, social media platforms are still not reliably responding to notifications from users and law enforcement about drug dealers on the platforms, allowing drug dealers to continue to sell illicit drugs on the platform for weeks or months after being made aware of the illegal conduct.

This bill requires social media platforms, as defined, with one million discrete monthly users to have a law enforcement liaison available by phone at all times for the purpose of receiving, and responding to, requests for information from law enforcement. The bill also requires social media platforms to immediately comply with a search warrant issued by an in-state law enforcement agency when the subject of the search warrant is an account of a user on the platform, unless existing state or federal laws require the social media program to respond differently.

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

SUPPORT: (Verified 5/3/24)

Arcadia Police Officers’ Association

Burbank Police Officers’ Association

CA Coalition of School Safety Professionals

CA Narcotic Officers’ Association

CA Reserve Police Officers’ Association

Claremont Police Officers’ Association

Corona Police Officers’ Association

Culver City Police Officers’ Association

Drug Induced Homicide Organization

DSA Monterey County

Fullerton Police Officers’ Association

LA School Police Management Association

LA Schools Police Association

Murrieta Police Officers’ Association

Newport Beach Police Association

Novato Police Officers’ Association

Orange County Sheriff’s Department

Palos Verdes Police Officers’ Association

Peace Officers’ Research Association of California

Placer County DSA

Pomona Police Officers’ Association

Riverside Police Officers’ Association

Riverside Sheriffs’ Association

Santa Ana Police Officers’ Association

Upland Police Officers’ Association

OPPOSITION: (Verified 5/3/24)

ACLU California Action

Electronic Frontier Foundation

Internet.Works California

ARGUMENTS IN SUPPORT: According to the Orange County Sheriff’s Department:

A factor in the proliferation of fentanyl is the use of social media for illicit drug sales. Drug Enforcement Agency Administrator Milgram has called social media platforms the “superhighway of drugs.” We have seen this firsthand during our law enforcement investigations. Drug-related deaths in Orange County are investigated with the intent of identifying the drug’s supplier for prosecution. In several cases we have investigated, social media was the means for making the drug sale. One challenge we face in the work to bring these investigations to a conclusion is the short time frame records with regard to the drug transactions are available. Some of the most prominent social media companies only retain communication records for a limited period of time. As a result, communications related to a fatal drug sale can often be gone before law enforcement has time to access them. By providing law enforcement with a 24/7 designated liaison at large social media companies and requiring immediate compliance with a search warrant, SB 918 would help take away a drug trafficker’s advantage and help our investigators have the time necessary to identify a suspect.

ARGUMENTS IN OPPOSITION: According to Internet.Works:

Since the enactment of AB 1993 (2016), internet platforms have invested resources in building our increasingly sophisticated law enforcement portals to receive and process legal process and court orders to empower law enforcement to communicate effectively with various platforms, investigate crimes with online evidence, and save lives. However, this process is characterized by a rigorous back-and-forth that narrows and refines these requests to only the most necessary information. A requirement for “immediate” compliance will erode this process by imposing liability that doesn’t incentivize responsible efforts to protect consumer data and privacy, and is unlikely to improve public safety outcomes.

Additionally, requiring a telephone number rather than a secure portal creates an attack vector for scammers, who can contact companies while posing as law enforcement. A dedicated telephone number is also redundant as state law has encouraged the development of web portals for law enforcement to submit requests and refine the details of the situation before a live conversation is necessary. We are concerned that a mandate for a telephone number dedicated to this purpose expands the opportunities for fraud and will not help law enforcement access the information it needs. Companies must already manage the evolving risks of fraud under the status quo, which are becoming more advanced with AI voice tools, and the requirements of this bill would exacerbate the problem.

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

5/3/24 13:54:20

**** END ****

 THIRD READING  

Bill No: SB 918

Author: Umberg (D)

Amended: 3/18/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24

AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener

SUBJECT: Law enforcement liaisons: search warrants

SOURCE: Author

DIGEST:

This bill requires social media platforms, as defined, with one million or more discrete monthly users to make a law enforcement liaison available by telephone and immediately respond to search warrants, as specified.

ANALYSIS: Existing constitutional 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 that no warrant shall issue without 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 law:

1. Defines “content” as statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application; and excludes media put on a service or application exclusively for the purpose of cloud storage, transmitting files, or file collaboration. (Bus. & Prof. Code, § 22945(a)(1).)
2. Defines “controlled substance” as a drug, substance, or immediate precursor that is listed on one of the schedules in the Health and Safety Code. (Bus. & Prof. Code, § 22945(a)(2); Health & Saf. Code, §§ 11007, 11054-11058.)
3. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
   1. A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
      1. A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
   2. The service or application allows users to do all of the following:
      1. Construct a public or semipublic profile for purposes of signing into and using the service.
      2. Populate a list of other users with whom an individual shares a social connection within the system.
      3. Create or post content viewable by others, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the users with content generated by others. (Bus. & Prof. Code, § 22945(a)(3).)
   3. Provides that “public or semipublic internet-based service or application” excludes a service or application used to facilitate communication within a business or enterprise among employees or affiliates of the business or enterprise, provided that access to the service or application is restricted to employees or affiliates of the business enterprise using the service or application. (Bus. & Prof. Code, § 22945(a)(4).)
4. Requires a social media platform that operates in the state to create, and publicly post on the platform’s website, a policy statement that includes specified information, including the social media platform’s policy on the use of the social media platform to illegally distribute a controlled substance and a link to the social media platform’s reporting mechanism for illegal or harmful content or behavior on the platform, if one exists. (Bus. & Prof. Code, § 22945(b).)
5. Requires a person or entity operating a social media platform in the state to retain data on content on which it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia. A social media platform shall retain such content and the username of the violating account for a period of 90 days; except that the platform is not required to retain content removed in violation of the policy if there is a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental care, or reproductive health care that is lawful under California law. (Bus. & Prof. Code, § 22945(d).)
6. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law.
   1. If the platform has a reporting mechanism, the person must report the content and request that it be removed before seeking the order, and the court may not act upon the request until 48 hours have passed since the request was made.
   2. If the platform does not have a reporting mechanism, the person may bring, and the court may act on, the action at any time.
   3. The court shall award court costs and reasonable attorney’s fees to a prevailing plaintiff. (Bus. & Prof. Code, § 22945.5.)
7. 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 them 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.)
8. 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.)
9. 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.)
10. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1529(a).)
11. Establishes the Electronics Communications Privacy Act (CalEPCA), which addresses the production of access to electronic communications pursuant to a warrant. (Pen. Code, pt. 2, tit. 12, ch. 3.6, §§ 1546 et seq.)
12. Defines the following relevant terms:
    1. “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.
    2. “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; but does not include subscriber information.
    3. “Electronic communications 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 stored electronic communications.
    4. “Electronic information” means electronic communication information or electronic device information.
    5. “Service provider” means a person or entity offering an electronic communication service.
13. Sets forth the process by which a government entity may compel production of, or access to, electronic communication information and electronic device information, including through a warrant. (Pen. Code, §§ 1546.1, 1546.2.)
14. Provides that a person whose electronic information was obtained in violation of CalEPCA may move to suppress the electronic information at trial, as specified. (Pen. Code, § 1546.6.)
15. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code, § 1524.4(a), (b).)
16. Requires every covered service provider to file a statement with the Attorney General describing the law enforcement contact process maintained in 15), and to provide updates as soon as practicable after changing its process. (Pen. Code, § 1524.4(b)(3).)
17. Requires the Attorney General to consolidate the statements received pursuant to 16) into one discrete record and regularly make the record available to local law enforcement agencies. A statement filed or distributed pursuant to 15)-17) is confidential and shall not be disclosed pursuant to any state law, including the California Public Records Act (Gov. Code, div. 10, tit. 1, §§ 7920.000 et seq.). (Pen. Code, § 1524.4(c), (d).)

This bill:

1. Defines the following terms:
   1. “Law enforcement agency” means a law enforcement agency in the state.
   2. “Law enforcement liaison” means a natural person employed by a social media platform who serves as a point of contact with law enforcement agencies.
   3. “Social media platform” has the same meaning as defined in Business and Professions Code section 22945.
2. Requires a social media platform to, at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information.
3. Requires, except as provided by any other law, a social media platform to immediately comply with a search warrant provided to a social media platform by a law enforcement agency if the subject of the search warrant is an account on the social media platform owned by a user of the social media platform.
4. Provides that 2)-3) do not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

Comments

Evidence shows that social media platforms have become an increasingly popular avenue for the distribution and sale of illegal drugs, especially to younger generations. This includes fentanyl, a synthetic opioid that is 50 to 100 times stronger than morphine. The Drug Enforcement Administration has warned about the threat of drug trafficking on social media platforms to adolescents and young adults.

Recent laws have required more transparency from social media platforms about their policies and required them to report quantitative data on their content moderation efforts. According to the author, however, social media platforms are still not reliably responding to notifications from users and law enforcement about drug dealers on the platforms, allowing drug dealers to continue to sell illicit drugs on the platform for weeks or months after being made aware of the illegal conduct.

This bill requires social media platforms, as defined, with one million discrete monthly users to have a law enforcement liaison available by phone at all times for the purpose of receiving, and responding to, requests for information from law enforcement. The bill also requires social media platforms to immediately comply with a search warrant issued by an in-state law enforcement agency when the subject of the search warrant is an account of a user on the platform, unless existing state or federal laws require the social media program to respond differently.

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

SUPPORT: (Verified 5/1/24)

Drug Induced Homicide Organization

Orange County Sheriff’s Department

Peace Officers’ Research Association of California

OPPOSITION: (Verified 5/1/24)

ACLU California Action

Electronic Frontier Foundation

Internet.Works California

ARGUMENTS IN SUPPORT: According to the Orange County Sheriff’s Department:

A factor in the proliferation of fentanyl is the use of social media for illicit drug sales. Drug Enforcement Agency Administrator Milgram has called social media platforms the “superhighway of drugs.” We have seen this firsthand during our law enforcement investigations. Drug-related deaths in Orange County are investigated with the intent of identifying the drug’s supplier for prosecution. In several cases we have investigated, social media was the means for making the drug sale. One challenge we face in the work to bring these investigations to a conclusion is the short time frame records with regard to the drug transactions are available. Some of the most prominent social media companies only retain communication records for a limited period of time. As a result, communications related to a fatal drug sale can often be gone before law enforcement has time to access them. By providing law enforcement with a 24/7 designated liaison at large social media companies and requiring immediate compliance with a search warrant, SB 918 would help take away a drug trafficker’s advantage and help our investigators have the time necessary to identify a suspect.

ARGUMENTS IN OPPOSITION: According to Internet.Works:

Since the enactment of AB 1993 (2016), internet platforms have invested resources in building our increasingly sophisticated law enforcement portals to receive and process legal process and court orders to empower law enforcement to communicate effectively with various platforms, investigate crimes with online evidence, and save lives. However, this process is characterized by a rigorous back-and-forth that narrows and refines these requests to only the most necessary information. A requirement for “immediate” compliance will erode this process by imposing liability that doesn’t incentivize responsible efforts to protect consumer data and privacy, and is unlikely to improve public safety outcomes.

Additionally, requiring a telephone number rather than a secure portal creates an attack vector for scammers, who can contact companies while posing as law enforcement. A dedicated telephone number is also redundant as state law has encouraged the development of web portals for law enforcement to submit requests and refine the details of the situation before a live conversation is necessary. We are concerned that a mandate for a telephone number dedicated to this purpose expands the opportunities for fraud and will not help law enforcement access the information it needs. Companies must already manage the evolving risks of fraud

under the status quo, which are becoming more advanced with AI voice tools, and the requirements of this bill would exacerbate the problem.

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

5/2/24 15:20:17

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 918 (Author:Umberg)

Version: March 18, 2024

Hearing Date: April 30, 2024

Fiscal: No

Urgency: No

Consultant: AWM

SUBJECT

Law enforcement liaisons: search warrants

DIGEST

This bill requires social media platforms, as defined, with one million or more discrete monthly users to make a law enforcement liaison available by telephone and immediately respond to search warrants, as specified.

EXECUTIVE SUMMARY

Evidence shows that social media platforms have become an increasingly popular avenue for the distribution and sale of illegal drugs, especially to younger generations. This includes fentanyl, a synthetic opioid that is 50 to 100 times stronger than morphine. The Drug Enforcement Administration (DEA) has warned about the threat of drug trafficking on social media platforms to adolescents and young adults.

Recent laws have required more transparency from social media platforms about their policies and required them to report quantitative data on their content moderation efforts. According to the author, however, social media platforms are still not reliably responding to notifications from users and law enforcement about drug dealers on the platforms, allowing drug dealers to continue to sell illicit drugs on the platform for weeks or months after being made aware of the illegal conduct.

This bill requires social media platforms, as defined, with one million discrete monthly users to have a law enforcement liaison available by phone at all times for the purpose of receiving, and responding to, requests for information from law enforcement; and to immediately comply with a search warrant when the subject of the search warrant is an account of a user on the platform. The author has agreed to amendments to clarify that the bill does not displace existing law relating to search warrants, which include procedures for obtaining information from electronic communication service providers and limitations relating to out-of-state warrants.

This bill is sponsored by the author and is supported by the Drug Induced Homicide Organization, the Orange County Sheriff’s Department, and the Peace Officers’ Research Association of California. This bill is opposed by ACLU California Action, the Electronic Frontier Foundation, and Internet.Works California.

PROPOSED CHANGES TO THE LAW

Existing constitutional law:

1. 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 that no warrant shall issue without 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 law:

1. Defines “content” as statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application; and excludes media put on a service or application exclusively for the purpose of cloud storage, transmitting files, or file collaboration. (Bus. & Prof. Code, § 22945(a)(1).)
2. Defines “controlled substance” as a drug, substance, or immediate precursor that is listed on one of the schedules in the Health and Safety Code. (Bus. & Prof. Code, § 22945(a)(2); Health & Saf. Code, §§ 11007, 11054-11058.)
3. Defines “social media platform” as a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
   1. A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
      1. A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
   2. The service or application allows users to do all of the following:
      1. Construct a public or semipublic profile for purposes of signing into and using the service.
      2. Populate a list of other users with whom an individual shares a social connection within the system.
      3. Create or post content viewable by others, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the users with content generated by others. (Bus. & Prof. Code, § 22945(a)(3).)
4. Provides that “public or semipublic internet-based service or application” excludes a service or application used to facilitate communication within a business or enterprise among employees or affiliates of the business or enterprise, provided that access to the service or application is restricted to employees or affiliates of the business enterprise using the service or application. (Bus. & Prof. Code, § 22945(a)(4).)
5. Requires a social media platform that operates in the state to create, and publicly post on the platform’s website, a policy statement that includes all of the following:
   1. The social media platform’s policy on the use of the social media platform to illegally distribute a controlled substance.
   2. A general description of the social media platform’s moderation practices that are employed to prevent users from posting or sharing electronic content pertaining to the illegal distribution of a controlled substance. The description shall not include any information that the platform believes might compromise operational efforts to identify prohibited content or user activity, or otherwise endanger user safety.
   3. A link to mental health and drug education resources provided by governmental public health authorities.
   4. A link to the social media platform’s reporting mechanism for illegal or harmful content or behavior on the platform, if one exists.
   5. A general description of the social media platform’s policies and procedures for responding to law enforcement inquiries, including warrants, subpoenas, and other court orders compelling the production of or access to electronic communication information, as defined.
   6. A general description of the social media platform’s policy on the retention of electronic communication information, as defined, including how long the platform retains that information.
   7. A general description of the social media platform’s policy and procedures governing when a platform proactively shares relevant information pertaining to the illegal distribution of a controlled substance. (Bus. & Prof. Code, § 22945(b).)
6. Provides that the disclosures required in 5) may be posted separately or incorporated within another document or post, including, but not limited to, the terms of service or the community guidelines. (Bus. & Prof. Code, § 22945(c).)
7. Requires a person or entity operating a social media platform in the state to do all of the following:
   1. Update the policy statement created pursuant to 5) as necessary.
   2. Consider consulting with nonprofits, safety advocates, and survivors to assist in developing and supporting the policy statement created pursuant to 5).
   3. Retain data on content on which it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia. A social media platform shall retain such content and the username of the violating account for a period of 90 days; except that the platform is not required to retain content removed in violation of the policy if there is a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental care, or reproductive health care that is lawful under California law. (Bus. & Prof. Code, § 22945(d).)
8. Permits a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into the state, sell, furnish, administer, or give away a controlled substance in violation of specified state law.
   1. If the platform has a reporting mechanism, the person must report the content and request that it be removed before seeking the order, and the court may not act upon the request until 48 hours have passed since the request was made.
   2. If the platform does not have a reporting mechanism, the person may bring, and the court may act on, the action at any time.
   3. The court shall award court costs and reasonable attorney’s fees to a prevailing plaintiff. (Bus. & Prof. Code, § 22945.5.)
9. 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 them 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.)
10. 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.)
11. 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.)
12. Requires a magistrate to issue a search warrant if they are satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1529(a).)
13. Establishes the Electronics Communications Privacy Act (CalEPCA), which addresses the production of access to electronic communications pursuant to a warrant. (Pen. Code, pt. 2, tit. 12, ch. 3.6, §§ 1546 et seq.)
14. Defines the following relevant terms:
    1. “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.
    2. “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; but does not include subscriber information.
    3. “Electronic communications 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 stored electronic communications.
    4. “Electronic device” means a device that stores, generates, or transmits information in electronic form; but does not include the magnetic strip on a driver’s license or identification card.
    5. “Electronic device information” means any information stored or generated through the operation of an electronic device, including the current and prior locations of the device.
    6. “Electronic information” means electronic communication information or electronic device information.
    7. “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.
    8. “Service provider” means a person or entity offering an electronic communication service.
    9. “Subscriber information” means the name, street address, telephone number, email address, or similar contact information provided by the subscriber to the service provider to establish and 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 a subscriber to a service provider. (Pen. Code, § 1546.)
15. Sets forth the process by which a government entity may compel production of, or access to, electronic communication information and electronic device information, including through a warrant. (Pen. Code, §§ 1546.1, 1546.2.)
16. Provides that a person whose electronic information was obtained in violation of CalEPCA may move to suppress the electronic information at trial, as specified. (Pen. Code, § 1546.6.)
17. Requires a provider of an electronic communication service subject to CalECPA to maintain a law enforcement contact process that must do all of the following, at a minimum:
    1. Provide a specific contact mechanism for law enforcement personnel.
    2. Provide continual availability of the law enforcement contact process.
    3. Provide a method to provide status updates to a requesting law enforcement agency on a request for assistance. (Pen. Code, § 1524.4(a), (b).)
18. Requires every covered service provider to file a statement with the Attorney General describing the law enforcement contact process maintained in 17), and to provide updates as soon as practicable after changing its process. (Pen. Code, § 1524.4(b)(3).)
19. Requires the Attorney General to consolidate the statements received pursuant to 18) into one discrete record and regularly make the record available to local law enforcement agencies. A statement filed or distributed pursuant to 17)-19) is confidential and shall not be disclosed pursuant to any state law, including the California Public Records Act (Gov. Code, div. 10, tit. 1, §§ 7920.000 et seq.). (Pen. Code, § 1524.4(c), (d).)

This bill:

1. Defines the following terms:
   1. “Law enforcement agency” means a law enforcement agency in the state.
   2. “Law enforcement liaison” means a natural person employed by a social media platform who serves as a point of contact with law enforcement agencies.
   3. “Social media platform” has the same meaning as defined in Business and Professions Code section 22945.
2. Requires a social media platform to, at all times, make available by telephone to a law enforcement agency a law enforcement liaison for the purpose of receiving, and responding to, requests for information.
3. Requires a social media platform to immediately comply with a search warrant provided to a social media platform by a law enforcement agency if the subject of the search warrant is an account on the social media platform owned by a user of the social media platform.
4. Provides that 2)-3) do not apply to a social media platform with fewer than 1,000,000 discrete monthly users.

COMMENTS

1. Author’s comments

As a society, we bear a collective responsibility to care for the health and safety of our citizens. That responsibility extends to private companies. Social media companies find themselves in a unique position in terms of their monopolization of communication between people of all ages. With this in mind, companies and sites should be more proactive and aggressive in their enforcement of their terms of service, especially when it comes to prohibitions on drug sales.

SB 918 will help stop drug traffickers from using social media to distribute drugs and prevent unintentional overdoses. SB 918 will achieve this by requiring social media platforms to have a telephone hotline available at all times for law enforcement agencies to be able to timely request information. Social media sites must be more proactive and communicative in their enforcement of their terms of service, which should include being responsive to law enforcement agencies investigating crimes on their platforms. SB 918 also compels social media platforms to immediately comply with a search warrant provided by a law enforcement agency if the subject of the search warrant has an account on the social media platform.

2. The problem of drug sales on social media

According to the National Center for Health Statistics, 106,699 people died of drug-involved overdoses in 2021.^[1] Over 80,000 of those deaths involved opioids, including fentanyl, a synthetic opioid.^[2] By contrast, in 2010, there were approximately 40,000 drug-involved overdose deaths, 21,089 of which involved opioids.^[3] “The primary driver of the opioid epidemic today is illicit fentanyl…[which] is up to 50 times more potent than heroin.”^[4] Among teens aged 15-19, the death rate from unintentional drug overdose has more than doubled since 2015.^[5]

Because of fentanyl’s extreme potency, “imprecise dosing and a lack of quality controls increase the risk of a fatal overdose.”^[6] Additionally, many individuals who take fentanyl do not realize they are taking fentanyl; fentanyl is frequently present in counterfeit tablets represented as heroin or prescription medications.^[7] The federal Drug Enforcement Administration (DEA) found that about four out of ten counterfeit pills it seized in 2021 contained lethal doses of fentanyl.^[8]

Young people seeking pills need look no further than the social media apps on their smartphones. Large numbers of drug dealers now use social media apps—particularly those with encrypted or disappearing messages—to offer drugs and make sales.^[9] Snapchat, a social media app with features that allow messages to disappear and to be locked with a password, has been particularly widely criticized for facilitating drug sales to minors over its platform,^[10] but the DEA has identified other social media platforms—including Facebook, Instagram, and TikTok—that are also used for drug sales.^[11] Drug dealers have been able to exploit the built-in features of these platforms, as well as inconsistent content moderation by the platforms, to the point that “gaining access to illicit drugs via social media…is nearly as convenient as using one’s phone to order a pizza or call an Uber.”^[12]

Over the past few years, the Legislature has passed several measures attempting to encourage, or require, social media platforms to be more proactive about blocking or banning drug dealers from their sites.^[13] Nevertheless, the author reports that social media platforms continue to allow known drug dealers to operate on their platforms long after they have been put on notice of the user’s illegal activity. Stakeholders also note that, because some social media platforms fail to retain records of communications on the platforms for long periods of time, time can be of the essence when obtaining information about drug activity from a platform.

3. This bill requires social media platforms to make a law enforcement liaison available by telephone and immediately respond to search warrants, as specified

This bill is intended to make social media platforms more responsive to requests from law enforcement. To that end, the bill imposes two new requirements on social media platforms—defined using the existing uniform definition in the Business and Professions Code^[14]—with one million or more discrete monthly users.

First, the bill requires a covered social media platform to make available, at all times, a law enforcement liaison for the purpose of receiving, and responding to, requests for information from law enforcement. The law enforcement liaison must be available by telephone. Opponents of the bill have raised concerns over whether having a liaison available by phone could give rise to fraud from individuals posing as law enforcement, and argue that the phone availability is duplicative of the requirement that electronic communication service providers maintain a contact mechanism for law enforcement personnel.^[15] Nothing in the bill, however, requires that the liaison be available in lieu of the portal, or prevents a social media platform from developing security measures with respect to the law enforcement liaison (such as identity verification).

Second, the bill requires a social media platform to immediately comply with a search warrant provided to the social media platform by a law enforcement agency if the subject of the search warrant is an account on the social media platform owned by a user of the platform. Opponents of the bill argue that the requirement of “immediate” action might cause social media platforms to respond to requests from out-of-state, such as requests targeting reproductive health care services or gender-affirming care, in violation of California law.^[16] The bill, however, expressly limits the definition of “law enforcement agency” to in-state law enforcement agencies.

CalECPA, enacted in 2015, imposes specific procedural requirements for obtaining information from an electronic communication service via a warrant.^[17] The author has agreed to an amendment clarifying that this bill does not alter those existing provisions or other laws relating to compliance with search warrants, such as limits on requests from out-of-state law enforcement.

4. Amendments

As noted above, the author has agreed to amend the bill to clarify that it does not displace existing statutory provisions. The amendment is as follows, subject to any nonsubstantive changes the Office of Legislative Counsel may make:

At page 1, in line 20, after “(b)”, insert “Except as provided in any other law,”

5. Arguments in support

According to the Orange County Sheriff’s Department:

A factor in the proliferation of fentanyl is the use of social media for illicit drug sales. Drug Enforcement Agency Administrator Milgram has called social media platforms the “superhighway of drugs.” We have seen this firsthand during our law enforcement investigations. Drug-related deaths in Orange County are investigated with the intent of identifying the drug’s supplier for prosecution. In several cases we have investigated, social media was the means for making the drug sale. One challenge we face in the work to bring these investigations to a conclusion is the short time frame records with regard to the drug transactions are available. Some of the most prominent social media companies only retain communication records for a limited period of time. As a result, communications related to a fatal drug sale can often be gone before law enforcement has time to access them. By providing law enforcement with a 24/7 designated liaison at large social media companies and requiring immediate compliance with a search warrant, SB 918 would help take away a drug trafficker’s advantage and help our investigators have the time necessary to identify a suspect.

6. Arguments in opposition

According to Internet.Works:

Since the enactment of AB 1993 (2016), internet platforms have invested resources in building our increasingly sophisticated law enforcement portals to receive and process legal process and court orders to empower law enforcement to communicate effectively with various platforms, investigate crimes with online evidence, and save lives. However, this process is characterized by a rigorous back-and-forth that narrows and refines these requests to only the most necessary information. A requirement for “immediate” compliance will erode this process by imposing liability that doesn’t incentivize responsible efforts to protect consumer data and privacy, and is unlikely to improve public safety outcomes.

Additionally, requiring a telephone number rather than a secure portal creates an attack vector for scammers, who can contact companies while posing as law enforcement. A dedicated telephone number is also redundant as state law has encouraged the development of web portals for law enforcement to submit requests and refine the details of the situation before a live conversation is necessary. We are concerned that a mandate for a telephone number dedicated to this purpose expands the opportunities for fraud and will not help law enforcement access the information it needs. Companies must already manage the evolving risks of fraud under the status quo, which are becoming more advanced with AI voice tools, and the requirements of this bill would exacerbate the problem.

SUPPORT

Drug Induced Homicide Organization

Orange County Sheriff’s Department

Peace Officers’ Research Association of California

OPPOSITION

ACLU California Action

Electronic Frontier Foundation

Internet.Works California

RELATED LEGISLATION

Pending Legislation:

AB 1800 (Jones-Sawyer, 2024) permits a person who suffers injury that is proximately caused by the illegal purchase of a controlled substance through a social media company, as specified, to recover statutory damages from the platform. AB 1800 is pending before the Assembly Judiciary Committee.

AB 522 (Kalra, 2023) requires administrative subpoenas seeking to obtain a customer’s electronic communication information from a service provider to meet certain conditions, including that notice and a right to object be provided to the customer. AB 522 is pending before the Senate Appropriations Committee.

Prior Legislation:

SB 60 (Umberg, Ch. 698, Stats. 2023) authorizes a person to seek an order requiring a social media platform to remove content that includes an offer to transport, sell, furnish, administer, or give away a controlled substance in violation of specified law.

AB 1027 (Petrie-Norris, Ch. 824, Stats. 2023) required social media platforms to include in their already-required policy statements a general description of the platform’s policy on the retention of electronic communication information and sharing of specified information; and added to existing terms of service reporting requirements an obligation to disclose policies on addressing the distribution of controlled substances on the platform and data on the number of times such content was flagged and actioned.

AB 955 (Petrie-Norris, 2023) would have made the sale of fentanyl on a social media platform, as defined, a felony. AB 955 died in the Assembly Public Safety Committee.

AB 2246 (Petrie-Norris, 2022) would have reclassified specified fentanyl analogues as Schedule I controlled substances and would have made the sale of fentanyl on a social media platform, as defined, a felony. AB 2246 failed passage in the Assembly Public Safety Committee.

AB 1628 (Ramos, Ch. 432, Stats. 2022) requires, until January 1, 2028, a social media company to create and publicly post a policy statement that includes, among other things, the platform’s policy on the use of the platform to illegally distribute a controlled substance.

SB 1121 (Leno, Ch. 541, Stats. 2016) modified CalECPA to authorize a government entity to access, without a warrant, the location or phone number of an electronic device used to call 911; allowed a government entity to retain voluntarily received electronic communication information beyond 90 days if the service provider or subscriber is or discloses information to, a correctional or detention facility; and excluded driver's licenses and other identification cards from its provisions.

AB 1993 (Irwin, Ch. 514, Stats. 2016) required certain technology companies covered under CalEPCA to maintain a law enforcement contact process to coordinate with law enforcement agency investigations, as specified.

SB 178 (Leno, Ch. 651, Stats. 2015) enacted CalECPA, which establishes the procedures for obtaining information from an electronic communication service provider about a user of the service.

**************

1. National Institutes of Health, National Institute on Drug Abuse, Drug Overdose Death Rates (Jun. 30, 2023), https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates. All links in this analysis are current as of April 26, 2024 ↑

2. Ibid. ↑

3. Ibid. ↑

4. Commission on Combating Synthetic Opioid Trafficking, Final Report (Feb, 2022), p. ix. ↑

5. National Institutes of Health, National Institute on Drug Abuse, Unintentional Drug Overdose Death Rates Among US Youth Aged 15-19 (Dec. 13, 2023), https://nida.nih.gov/research-topics/trends-statistics/infographics/unintentional-drug-overdose-death-rates-among-us-youth-aged-15-19. The death rate as of Q4 2022, the most recent quarter for which there is data available, is lower than the Q2 2021 peak, but is still significantly higher than pre-pandemic rates. (Ibid.) ↑

6. Id. at p. xi. ↑

7. Ibid. ↑

8. Hoffman, Fentanyl Tainted Pills Bought on Social Media Cause Youth Drug Deaths to Soar, N.Y. Times (May 19, 2022), available at https://www.nytimes.com/2022/05/19/health/pills-fentanyl-social-media.html. ↑

9. Ibid.; Whitehurst, Group urges feds to investigate Snapchat over fentanyl sales, L.A. Times (Dec. 22, 2022), available at https://www.latimes.com/business/story/2022-12-23/group-urges-feds-investigate-snapchat-over-fentanyl-sales. ↑

10. Mann, Social media platforms face pressure to stop online drug dealers who target kids, NPR (Jan. 26, 2023), https://www.npr.org/2023/01/26/1151474285/social-media-platforms-face-pressure-to-stop-online-drug-dealers-who-target-kids. ↑

11. Whitehurst, Group urges feds to investigate Snapchat over fentanyl sales, L.A. Times (Dec. 22, 2022), available at https://www.latimes.com/business/story/2022-12-23/group-urges-feds-investigate-snapchat-over-fentanyl-sales. ↑

12. Colorado Department of Law, Social Media, Fentanyl, & Illegal Drug Sales: A Report from the Colorado Department of Law (2023), pp. 8-9. ↑

13. E.g., SB 60 (Umberg, Ch. 698, Stats. 2023); AB 1027 (Petrie-Norris, Ch. 824, Stats. 2023); AB 1628 (Ramos, Ch. 432, Stats. 2022). ↑

14. See Bus. & Prof. Code, § 22945(a)(3). ↑

15. Pen. Code, § 1524.4. ↑

16. Id., § 13778.3(f). ↑

17. See SB 178 (Leno, Ch. 651, Stats. 2015); Pen. Code, §§ 1546-1546.5.) ↑