Amended in Assembly August 28, 2015

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 BillNo. 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 tobegin delete encompass no more information than is necessary to achieve the objective of the searchend deletebegin insert describe with particularity the information to be seizedend insert and would impose other conditions on the use of the search warrant or wiretap order and the information obtained, includingbegin delete retentionend deletebegin insert retention, sealing,end insert and disclosure.begin insert The bill would require a warrant directed to a service provider to be accompanied by an order requiring the service provider to verify by affidavit the authenticity of electronic information that it produces, as specified. The bill would authorize a service provider to voluntarily disclose, when not otherwise prohibited by state or federal law, electronic communication information or subscriber information, and would require a government entity to destroy information so provided within 90 days, subject to specified exceptions.end insert The bill would, subject to exceptions, require a government entity that executes a search warrant 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 or statement describing the emergency under which the notice was delayed. The bill would provide that 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. 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 23 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 23 vote of the Legislature.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P3    1

SECTION 1.  

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

3 

4Chapter  3.6. Electronic Communications Privacy Act
5

 

6

1546.  

For purposes of this chapter, the following definitions
7apply:

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

9(1) Danger to the life or physical safety of an individual.

10(2) Flight from prosecution.

11(3) begin deleteImminent destruction end deletebegin insertDestruction end insertof or tampering with
12evidence.

13(4) Intimidation of potential witnesses.

14(5) Serious jeopardy to an investigation or undue delay of a
15trial.

16(b) “Authorized possessor” means the possessor of an electronic
17device when that person is the owner of the device or has been
18authorized to possess the device by the owner of the device.

19(c) “Electronic communication” means the transfer of signs,
20signals, writings, images, sounds, data, or intelligence of any nature
21in whole or in part by a wire, radio, electromagnetic, photoelectric,
22or photo-optical system.

23(d) “Electronic communication information” means any
24information about an electronic communication or the use of an
25electronic communication service, including, but not limited to,
26the contents, sender, recipients, format, or location of the sender
27or recipients at any point during the communication, the time or
P4    1date the communication was created, sent, or received, or any
2information pertaining to any individual or device participating in
3the communication, including, but not limited to, an IP address.
4Electronic communication information does not include subscriber
5information as defined in this chapter.

6(e) “Electronic communication service” means a service that
7provides to its subscribers or users the ability to send or receive
8electronic communications, including any service that acts as an
9intermediary in the transmission of electronic communications, or
10stores electronic communication information.

11(f) “Electronic device” means a device that stores, generates,
12or transmits information in electronic form.

13(g) “Electronic device information” means any information
14stored on or generated through the operation of an electronic
15device, including the current and prior locations of the device.

16(h) “Electronic information” means electronic communication
17information or electronic device information.

18(i) “Government entity” means a department or agency of the
19state or a political subdivision thereof, or an individual acting for
20or on behalf of the state or a political subdivision thereof.

21(j) “Service provider” means a person or entity offering an
22electronic communication service.

23(k) “Specific consent” means consent provided directly to the
24government entity seeking information, including, but not limited
25to, when the government entity is the addressee or intended
26recipientbegin insert or a member of the intended audienceend insert of an electronic
27communication.

28(l) “Subscriber information” means the name, street address,
29telephone number, email address, or similar contact information
30provided by the subscriber to the provider to establish or maintain
31an account or communication channel, a subscriber or account
32number or identifier, the length of service, and the types of services
33used by a user of or subscriber to a service provider.

34

1546.1.  

(a) Except as provided in this section, a government
35entity shall not do any of the following:

36(1) Compel the production of or access to electronic
37communication information from a service provider.

38(2) Compel the production of or access to electronic device
39information from any person or entity other than the authorized
40possessor of the device.

P5    1(3) Access electronic device information by means of physical
2interaction or electronic communication with the electronic device.
3begin insert This section does not prohibit the intended recipient of an
4electronic communication from voluntarily disclosing electronic
5communication information concerning that communication to a
6government entity.end insert

7(b) A government entity may compel the production of or access
8to electronic communication information from a service provider,
9or compel the production of or access to electronic device
10information from any person or entity other than the authorized
11possessor of the device only under the following circumstances:

12(1) Pursuant to a warrant issued pursuant to Chapter 3
13(commencing with Section 1523) and subject to subdivision (d).

14(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
15(commencing with Section 629.50) of Title 15 of Part 1.

16(3) Pursuant to an order for electronic reader records issued
17pursuant to Section 1798.90 of the Civil Code.

18(c) A government entity may access electronic device
19information by means of physical interaction or electronic
20communication with the device only as follows:

21(1) Pursuant to a warrant issued pursuant to Chapter 3
22(commencing with Section 1523) and subject to subdivision (d).

23(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
24(commencing with Section 629.50) of Title 15 of Part 1.

25(3) With the specific consent of the authorized possessor of the
26device.

27(4) With the specific consent of the owner of the device, only
28when the device has been reported as lost or stolen.

29(5) If the government entity, in good faith, believes that an
30emergency involving danger of death or serious physical injury to
31any person requires access to the electronic device information.

32(6) If the government entity, in good faith, believes the device
33to be lost, stolen, or abandoned, provided that the entity shall only
34access electronic device information in order to attempt to identify,
35verify, or contact the owner or authorized possessor of the device.

36(d) Any warrant for electronic information shall comply with
37the following:

38(1) The warrant shallbegin delete be limited to only that information
39necessary to achieve the objective of the warrant,end delete
begin insert describe with
40particularity the information to be seizedend insert
by specifying the time
P6    1periods covered and, as appropriate and reasonable, the target
2individuals or accounts, the applications or services covered, and
3the types of information sought.

begin insert

4(2) The warrant shall require that any information obtained
5through the execution of the warrant that is unrelated to the
6objective of the warrant shall be sealed and not subject to further
7review, use, or disclosure without a court order. A court shall
8issue such an order upon a finding that there is probable cause to
9believe that the information is relevant to an active investigation,
10or review, use, or disclosure is required by state or federal law.

end insert
begin delete

34 11(2)

end delete

12begin insert(3)end insert The warrant shall comply with all other provisions of
13California and federal law, including any provisions prohibiting,
14limiting, or imposing additional requirements on the use of search
15 warrants.begin insert If directed to a service provider, the warrant shall be
16accompanied by an order requiring the service provider to verify
17the authenticity of electronic information that it produces by
18providing an affidavit that complies with the requirements set forth
19in Section 1561 of the Evidence Code. Admission of that
20information into evidence shall be subject to Section 1562 of the
21Evidence Code.end insert

22(e) When issuing any warrant or order for electronic information,
23or upon the petition from the target or recipient of the warrant or
24order, a court may, at its discretion, do any or all of the following:

25(1) Appoint a special master, as described in subdivision (d) of
26Section 1524, charged with ensuring that only information
27necessary to achieve the objective of the warrant or order is
28produced or accessed.

29(2) Require that any information obtained through the execution
30of the warrant or order that is unrelated to the objective of the
31warrant be destroyed as soon as feasible afterbegin delete that determination
32is made.end delete
begin insert the termination of the current investigation and any
33related investigations or proceedings.end insert

34(f) A service provider maybegin delete disclose, but shall not be required
35to disclose,end delete
begin insert voluntarily discloseend insert electronic communication
36information or subscriber information when that disclosure is not
37otherwise prohibited by state or federal law.

38(g) If a government entity receives electronic communication
39information voluntarily provided pursuant to subdivision (f), it
P7    1shall destroy that information within 90 days unlessbegin delete theend deletebegin insert one or
2more of the following circumstances apply:end insert

3begin insert(1)end insertbegin insertend insertbegin insertTheend insert entity has or obtains the specific consent of the sender
4or recipient of the electronic communications about which
5information wasbegin delete disclosed orend deletebegin insert disclosed.end insert

6begin insert(2)end insertbegin insertend insertbegin insertThe entityend insert obtains a court order authorizing the retention of
7the information. A court shall issue a retention order upon a finding
8that the conditions justifying the initial voluntary disclosure persist,
9in which case the court shall authorize the retention of the
10information only for so long as those conditions persist, or there
11is probable cause to believe that the information constitutes
12evidence that a crime has been committed.

begin insert

13(3) The entity reasonably believes that the information relates
14to child pornography and the information is retained as part of a
15multiagency database used in the investigation of child
16pornography and related crimes.

end insert

17(h) If a government entity obtains electronic information
18pursuant to an emergency involving danger of death or serious
19physical injury to a person, that requires access to the electronic
20information without delay, the entity shall, within three days after
21obtaining the electronic information, file with the appropriate court
22an application for a warrant or order authorizing obtaining the
23electronic information or a motion seeking approval of the
24 emergency disclosures that shall set forth the facts giving rise to
25thebegin delete emergency.end deletebegin insert emergency, and if applicable, a request supported
26by a sworn affidavit for an order delaying notification under
27paragraph (1) of subdivision (b) of Section 1546.2.end insert
The court shall
28promptly rule on the application or motion and shall order the
29immediate destruction of all information obtained,begin insert and immediate
30notification pursuant to subdivision (a) of Section 1546.2 if such
31notice has not already been given,end insert
upon a finding that the facts
32did not give rise to an emergency or upon rejecting the warrant or
33order application on any other ground.

34(i) This section does not limit the authority of a government
35entity to use an administrative, grand jury, trial, or civil discovery
36subpoena to dobegin delete eitherend deletebegin insert anyend insert of the following:

37(1) Require an originator, addressee, or intended recipient of
38an electronic communication to disclose any electronic
39communication information associated with that communication.

P8    1(2) Require an entity that provides electronic communications
2services to its officers, directors, employees, or agents for the
3purpose of carrying out their duties, to disclose electronic
4communication information associated with an electronic
5communication to or from an officer, director, employee, or agent
6of the entity.

begin insert

7(3) Require a service provider to provide subscriber information.

end insert
8

1546.2.  

(a) Except as otherwise provided in this section, any
9government entity that executes a warrant, orbegin delete requestsend deletebegin insert obtainsend insert
10 electronic information in an emergency pursuant to Section 1546.1,
11shallbegin delete contemporaneouslyend delete serve upon, or deliver to by registered
12or first-class mail, electronic mail, or other means reasonably
13calculated to be effective, the identified targets of the warrant or
14emergency request, a notice that informs the recipient that
15information about the recipient has been compelled or requested,
16and states with reasonable specificity the nature of the government
17investigation under which the information is sought. The notice
18shall include a copy of the warrant or a written statement setting
19forth facts giving rise to the emergency.begin insert The notice shall be
20provided contemporaneously with the execution of a warrant, or,
21in the case of an emergency, within three days after obtaining the
22electronic information.end insert

23(b) (1) When a warrant is soughtbegin insert or electronic information is
24obtained in an emergencyend insert
under Section 1546.1, the government
25entity may submit a request supported by a sworn affidavit for an
26order delaying notification and prohibiting any party providing
27information from notifying any other party that information has
28been sought. The court shall issue the order if the court determines
29that there is reason to believe that notification may have an adverse
30result, but only for the period of time that the court finds there is
31reason to believe that the notification may have that adverse result,
32and not to exceed 90 days.

33(2) The court may grant extensions of the delay of up to 90 days
34each on the same grounds as provided in paragraph (1).

35(3) Upon expiration of the period of delay of the notification,
36the government entity shall serve upon, or deliver to by registered
37or first-class mail, electronic mail, or other means reasonably
38calculated to be effective as specified by the court issuing the order
39authorizing delayed notification, the identified targets of the
40warrant, a document that includes the information described in
P9    1subdivision (a), a copy of all electronic information obtained or a
2summary of that information, including, at a minimum, the number
3and types of records disclosed, the date and time when the earliest
4and latest records were created, and a statement of the grounds for
5the court’s determination to grant a delay in notifying the
6individual.

7(c) If there is no identified target of a warrant or emergency
8request at the time of its issuance, the government entity shall
9submit to the Department of Justice within three days of the
10execution of the warrant or issuance of the request all of the
11information required in subdivision (a). If an order delaying notice
12is obtained pursuant to subdivision (b), the government entity shall
13submit to the department upon the expiration of the period of delay
14of the notification all of the information required in paragraph (3)
15of subdivision (b). The department shall publish all those reports
16on its Internet Web site within 90 days of receipt.

17(d) Except as otherwise provided in this section, nothing in this
18chapter shall prohibit or limit a service provider or any other party
19from disclosing information about any request or demand for
20electronic information.

21

1546.4.  

(a) Any person in a trial, hearing, or proceeding may
22move to suppress any electronic information obtained or retained
23in violation of the Fourth Amendment to the United States
24Constitution or of this chapter. The motion shall be made,
25determined, and be subject to review in accordance with the
26procedures set forth in subdivisions (b) to (q), inclusive, of Section
271538.5.

28(b) The Attorney General may commence a civil action to
29compel any government entity to comply with the provisions of
30this chapter.

31(c) An individual whose information is targeted by a warrant,
32order, or other legal process that is inconsistent with this chapter,
33or the California Constitution or the United States Constitution,
34or a service provider or any other recipient of the warrant, order,
35or other legal process may petition the issuing court to void or
36modify the warrant, order, or process, or to order the destruction
37of any information obtained in violation of this chapter, or the
38California Constitution, or the United States Constitution.

39(d) A California or foreign corporation, and its officers,
40employees, and agents, are not subject to any cause of action for
P10   1providing records, information, facilities, or assistance in
2accordance with the terms of a warrant, court order, statutory
3authorization, emergency certification, or wiretap order issued
4pursuant to this chapter.



O

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