BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 828
                                                                  Page 1

          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 
           








                                                                  SB 828
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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