BILL ANALYSIS Ó
SB 828
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Date of Hearing: June 24, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 828 (Lieu, Anderson) - As Amended: May 6, 2014
SUMMARY : Prohibits the state from providing material support,
participation, or assistance to any federal agency attempting
the illegal and unconstitutional collection of electronic data
or metadata, without consent, of any person not based on a valid
warrant that particularly describes the person, place, and thing
to be searched or seized; a court order; or in accordance with
judicially-recognized exceptions to warrant requirements.
EXISTING 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 no warrants
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched and the persons or things to be seized. (U.S.
Const., 4th Amend.)
2)States that the powers not delegated to the United States by
the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people. (U.S.
Const., 10th Amend.)
3)Prohibits a state from making or enforcing any law that
abridges the privileges or immunities of U.S. citizens, and
prohibits any state from depriving any person of life,
liberty, or property, without due process of law, or deny to
any person within its jurisdiction the equal protection of the
laws. (U.S. Const., 14th Amend, § 1.)
4)Provides that "the right of the people to be secure in their
persons, houses, papers and effects against unreasonable
seizures and searches may not be violated; and a warrant may
not issue except on probable cause, supported by oath or
affirmation, particularly describing the place to be searched
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and the persons and things to be seized." (Cal. Const., art.
I, § 13.)
5)Defines a "search warrant" as an order in writing in the name
of the People, signed by a magistrate, directed to a peace
officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Fourth
Amendment to the United States Constitution states: 'The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated.' All Americans, including
over 38 million Californians, cannot reasonably be considered
suspicious simply for making or receiving telephone calls.
The NSA's sweeping seizure of Californians' data is an
'unreasonable seizure' by any definition of the term.
Recently, a federal judge declared the NSA's blanket phone
surveillance program unconstitutional, calling the program
'near Orwellian.'
"Over the last seven years, the National Security Agency (NSA)
has collected phone record data on every telephone call made
or received by every American. Media articles also state the
NSA's surveillance program on Americans extends to not just
phone records, but also all types of electronic data,
including emails, text messages and information stored on
Americans' smart phones.
"To collect electronic and metadata information, the NSA
sometimes relies upon services provided by the state. In
order to prevent taxpayers' money from going towards violating
their own rights, this bill would ban state agencies from
giving any material support, participation or assistance to
any federal agency to collect electronic or metadata of any
person, unless there has been a warrant issued that
specifically describes the person, place and thing to be
searched or seized.
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"This bill would make it the clear policy of the state to
refuse material support, participation, or assistance to any
federal agency attempting the illegal and unconstitutional
collection of electronic data or metadata, without consent, of
any person not based on a warrant that particularly describes
the person, place, and thing to be searched or seized, or in
accordance with judicially recognized exceptions to warrant
requirements."
2)Government Searches & Seizures : Both the United States and
the California constitutions guarantee the right of all
persons to be secure from unreasonable searches and seizures.
(U.S. Const., amend. IV; Cal. Const., art. 1, § 13.) This
protection applies to all unreasonable government intrusions
into legitimate expectations of privacy. (United States v.
Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by
California v. Acevedo (1991) 500 U.S. 565.) In general, a
search is not valid unless it is conducted pursuant to a
warrant. The mere reasonableness of a search, assessed in
light of the surrounding circumstances, is not a substitute
for the warrant required by the Constitution. (Arkansas v.
Sanders (1979) 442 U.S. 753, 758, overruled on other grounds
by California v. Acevedo, supra.) There are exceptions to the
warrant requirement, but the burden of establishing an
exception is on the party seeking one. (Id. at p. 760.)
This bill would prohibit the state from assisting a federal
agency with collecting electronic data or metadata without a
warrant or the consent of the person. As noted in the
author's statement, this bill is in response to recent
information about the NSA's surveillance program. The intent
of this bill is to make it clear that California shall not
help the NSA in any illegal or unconstitutional collection of
electronic data or metadata.
3)Argument in Support : The Tenth Amendment Center states,
"Recent revelations make it clear that the NSA operations
violate the Constitution on a daily basis. The Fourth
sets up clear parameters for searching and seizing
personal information. The founders chafed under general
warrants issued by the British government that allowed
random searches at the whim of the authorities. The NSA
operates in much the same manner, thrusting a dagger into
the heart of the Fourth Amendment's intent.
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?
"While California cannot bar the NSA from operating within its
borders, it does not have to cooperate with or support the
agency. The well-established anti-commandeering doctrine,
holding that the federal government cannot coerce or compel
states to implement or enforce federal regulations or
programs, puts SB[]828 on firm legal footing."
4)Argument in Opposition : The California State Sheriffs'
Association argues, "Prohibiting the state from aiding and
abetting federal activity that would otherwise be illegal or
unconstitutional seems unnecessary as we cannot imagine that
such behavior is not already proscribed. If the bill's intent
is to move beyond what most would agree is existing law, the
language regarding electronic data and metadata is unclear as
the bill fails to specifically list the activities that are
trying to be prevented. ? [] Additionally, it is unclear
how the language regarding obtaining a warrant will be
reconciled with the language regarding the 'illegal and
unconstitutional collection of electronic data and metadata.'
We have concerns that this bill could create uncertainty with
respect to completely lawful and constitutional investigations
involving local agencies and federal partners."
5)Prior Legislation :
a) AB 4 (Ammiano), Chapter 570, Statutes of 2013, prohibits
a law enforcement official from detaining an individual on
the basis of a U.S. Immigration and Customs Enforcement
hold after that individual becomes eligible for release,
unless the individual has been convicted of or charged with
specified crimes.
b) AB 351 (Donnelly), Chapter 450, Statutes of 2013,
prohibits the state, its political subdivisions, and
specified others from knowingly aiding an agency of the
U.S. Armed Forces in enforcing specified federal laws if
doing so would violate the United States or California
constitutions or any state law.
REGISTERED SUPPORT / OPPOSITION :
Support
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Bill of Rights Defense Committee
California Attorneys for Criminal Justice
Consumer Federation of California
Restore the Fourth Los Angeles
Tenth Amendment Center
Opposition
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744