Amended in Assembly August 17, 2015

Amended in Assembly July 7, 2015

Amended in Assembly June 24, 2015

Amended in Senate June 2, 2015

Amended in Senate April 22, 2015

Amended in Senate March 16, 2015

Senate Bill No. 178

Introduced by Senators Leno and Anderson

(Principal coauthor: Assembly Member Gatto)

(Coauthors: Senators Cannella, Gaines, Hertzberg, Hill, McGuire, Nielsen, and Roth)

(Coauthors: Assembly Members Chiu, Dahle, Gordon, Maienschein, Obernolte, Quirk, Ting, and Weber)

February 9, 2015

An act to add Chapter 3.6 (commencing with Section 1546) to Title 12 of Part 2 of the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

SB 178, as amended, Leno. Privacy: electronic communications: search warrant.

(1) Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.

This bill would prohibit a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, or order for electronic reader records, except for emergency situations, as defined. The bill would define a number of terms for those purposes, including, among others, “electronic communication information” and “electronic device information,” which the bill defines collectively as “electronic information.” The bill would require a search warrant for electronic information to encompass no more information than is necessary to achieve the objective of the search and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, including retention and disclosure. The bill would, subject to exceptions, require a government entity that executes a search warrant begin delete or wiretap order end delete pursuant to these provisions to contemporaneously provide notice, as specified, to the identified target, that informs the recipient that information about the recipient has been compelled or requested, and that states the nature of the government investigation under which the information is sought. The bill would authorize a delay of 90 days, subject to renewal, for providing the notice under specified conditions that constitute an emergency. The bill would require the notice to include a copy of the warrant begin delete or order end delete or statement describing the emergency under which the notice was delayed. The bill would provide that begin delete electronic information obtained in violation of these provisions would be inadmissible in a criminal, civil, or administrative proceeding. end delete begin insert any person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of its provisions, according to specified procedures. end insert The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant, wiretap order, or other order issued pursuant to these provisions.

(2) The California Constitution provides for the Right to Truth in Evidence, which requires a 2⁄3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.

Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2⁄3 vote of the Legislature.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Chapter 3.6 (commencing with Section 1546) is
added to Title 12 of Part 2 of the Penal Code, to read:

 

Chapter  3.6. Electronic Communications Privacy Act

 

1546.  

For purposes of this chapter, the following definitions
apply:

(a) An “adverse result” means any of the following:

(1) Danger to the life or physical safety of an individual.

(2) Flight from prosecution.

(3) Imminent destruction of or tampering with evidence.

(4) Intimidation of potential witnesses.

(5) Serious jeopardy to an investigation or undue delay of a
trial.

(b) “Authorized possessor” means the possessor of an electronic
device when that person is the owner of the device or has been
authorized to possess the device by the owner of the device.

(c) “Electronic communication” means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of any nature
in whole or in part by a wire, radio, electromagnetic, photoelectric,
or photo-optical system.

(d) “Electronic communication information” means any
information about an electronic communication or the use of an
electronic communication service, including, but not limited to,
the contents, sender, recipients, format, or location of the sender
or recipients at any point during the communication, the time or
date the communication was created, sent, or received, or any
information pertaining to any individual or device participating in
the communication, including, but not limited to, an IP address.
Electronic communication information does not include subscriber
information as defined in this chapter.

(e) “Electronic communication service” means a service that
provides to its subscribers or users the ability to send or receive
electronic communications, including any service that acts as an
intermediary in the transmission of electronic communications, or
stores electronic communication information.

(f) “Electronic device” means a device that stores, generates,
or transmits information in electronic form.

(g) “Electronic device information” means any information
stored on or generated through the operation of an electronic
device, including the current and prior locations of the device.

(h) “Electronic information” means electronic communication
information or electronic device information.

(i) “Government entity” means a department or agency of the
state or a political subdivision thereof, or an individual acting for
or on behalf of the state or a political subdivision thereof.

(j) “Service provider” means a person or entity offering an
electronic communication service.

(k) “Specific consent” means consent provided directly to the
government entity seeking information, including, but not limited
to, when the government entity is the addressee or intended
recipient of an electronic communication.

(l) “Subscriber information” means the name, street address,
telephone number, email address, or similar contact information
provided by the subscriber to the provider to establish or maintain
an account or communication channel, a subscriber or account
number or identifier, the length of service, and the types of services
used by a user of or subscriber to a service provider.

1546.1.  

(a) Except as provided in this section, a government
entity shall not do any of the following:

(1) Compel the production of or access to electronic
communication information from a service provider.

(2) Compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device.

(3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.

(b) A government entity may compel the production of or access
to electronic communication information from a service provider,
or compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device only under the following circumstances:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code.

(c) A government entity may access electronic device
information by means of physical interaction or electronic
communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) With the specific consent of the authorized possessor of the
device.

(4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.

(5) If the government entity, in good faith, believes that an
emergency involving danger of death or serious physical injury to
any person requires access to the electronic device information.

(6) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the entity shall only
access electronic device information in order to attempt to identify,
verify, or contact the owner or authorized possessor of the device.

(d) Any warrant for electronic information shall comply with
the following:

(1) The warrant shall be limited to only that information
necessary to achieve the objective of the warrant, by specifying
the time periods covered and, as appropriate and reasonable, the
target individuals or accounts, the applications or services covered,
and the types of information sought.

(2) The warrant shall comply with all other provisions of
California and federal law, including any provisions prohibiting,
limiting, or imposing additional requirements on the use of search
warrants.

(e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
order, a court may, at its discretion, do any or all of the following:

(1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information
necessary to achieve the objective of the warrant or order is
produced or accessed.

(2) Require that any information obtained through the execution
of the warrant or order that is unrelated to the objective of the
warrant be destroyed as soon as feasible after that determination
is made.

(f) A service provider may disclose, but shall not be required
to disclose, electronic communication information or subscriber
information when that disclosure is not otherwise prohibited by
state or federal law.

(g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (f), it
shall destroy that information within 90 days unless the entity has
or obtains the specific consent of the sender or recipient of the
electronic communications about which information was disclosed
or obtains a court order authorizing the retention of the information.
A court shall issue a retention order upon a finding that the
conditions justifying the initial voluntary disclosure persist, in
which case the court shall authorize the retention of the information
only for so long as those conditions persist, or there is probable
cause to believe that the information constitutes evidence that a
crime has been committed.

(h) If a government entity obtains electronic information
pursuant to an emergency involving danger of death or serious
physical injury to a person, that requires access to the electronic
information without delay, the entity shall, within three days after
obtaining the electronic information, file with the appropriate court
begin insert an application for a warrant or order authorizing obtaining the
electronic information or end insert a motion seeking approval of the
emergency disclosures that shall set forth the facts giving rise to
the emergency. The court shall promptly rule on the begin insert application
or end insert motion and shall order the immediate destruction of all
information obtained, upon a finding that the facts did not give
rise to an begin delete emergency. end delete begin insert emergency or upon rejecting the warrant or
order application on any other ground. end insert

(i) This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil discovery
subpoena to do either of the following:

(1) Require an originator, addressee, or intended recipient of
an electronic communication to disclose any electronic
communication information associated with that communication.

(2) Require an entity that provides electronic communications
services to its officers, directors, employees, or agents for the
purpose of carrying out their duties, to disclose electronic
communication information associated with an electronic
communication to or from an officer, director, employee, or agent
of the entity.

1546.2.  

(a) Except as otherwise provided in this section, any
government entity that executes a warrant, or requests electronic
information in an emergency pursuant to Section 1546.1, shall
contemporaneously serve upon, or deliver to by registered or
first-class mail, electronic mail, or other means reasonably
calculated to be effective, the identified targets of the warrant or
emergency request, a notice that informs the recipient that
information about the recipient has been compelled or requested,
and states with reasonable specificity the nature of the government
investigation under which the information is sought. The notice
shall include a copy of the warrant or a written statement setting
forth facts giving rise to the emergency.

(b) (1) When a warrant is sought under Section 1546.1, the
government entity may submit a request supported by a sworn
affidavit for an order delaying notification and prohibiting any
party providing information from notifying any other party that
information has been sought. The court shall issue the order if the
court determines that there is reason to believe that notification
may have an adverse result, but only for the period of time that
the court finds there is reason to believe that the notification may
have that adverse result, and not to exceed 90 days.

(2) The court may grant extensions of the delay of up to 90 days
each on the same grounds as provided in paragraph (1).

(3) Upon expiration of the period of delay of the notification,
the government entity shall serve upon, or deliver to by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effective as specified by the court issuing the order
authorizing delayed notification, the identified targets of the
warrant, a document that includes the information described in
subdivision (a), a copy of all electronic information obtained or a
summary of that information, including, at a minimum, the number
and types of records disclosed, the date and time when the earliest
and latest records were created, and a statement of the grounds for
the court’s determination to grant a delay in notifying the
individual.

(c) If there is no identified target of a warrant or emergency
request at the time of its issuance, the government entity shall
submit to the Department of Justice within three days of the
execution of the warrant or issuance of the request all of the
information required in subdivision (a). If an order delaying notice
is obtained pursuant to subdivision (b), the government entity shall
submit to the department upon the expiration of the period of delay
of the notification all of the information required in paragraph (3)
of subdivision (b). The department shall publish all those reports
on its Internet Web site within 90 days of receipt.

(d) Except as otherwise provided in this section, nothing in this
chapter shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for
electronic information.

begin delete

1546.4.  

(a) Except as proof of a violation of this chapter, no
evidence obtained or retained in violation of this chapter shall be
admissible in a criminal, civil, or administrative proceeding, or
used in an affidavit in an effort to obtain a search warrant or court
order.

end delete

begin insert

begin insert 1546.4. end insert   

end insert begin insert

(a) Any person in a trial, hearing, or proceeding may
move to suppress any electronic information obtained or retained
in violation of the Fourth Amendment to the United States
Constitution or of this chapter. The motion shall be made,
determined, and be subject to review in accordance with the
procedures set forth in subdivisions (b) to (q), inclusive, of Section
1538.5.

end insert

(b) The Attorney General may commence a civil action to
compel any government entity to comply with the provisions of
this chapter.

(c) An individual whose information is targeted by a warrant,
order, or other legal process that is inconsistent with this chapter,
or the California Constitution or the United States Constitution,
or a service provider or any other recipient of the warrant, order,
or other legal process may petition the issuing court to void or
modify the warrant, order, or process, or to order the destruction
of any information obtained in violation of this chapter, or the
California Constitution, or the United States Constitution.

(d) A California or foreign corporation, and its officers,
employees, and agents, are not subject to any cause of action for
providing records, information, facilities, or assistance in
accordance with the terms of a warrant, court order, statutory
authorization, emergency certification, or wiretap order issued
pursuant to this chapter.