BILL ANALYSIS Ó
SB 178
Page 1
Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 178
(Leno) - As Amended August 17, 2015
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|Policy |Privacy and Consumer |Vote:|9 - 0 |
|Committee: |Protection | | |
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| |Public Safety | |5 - 0 |
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY:
This bill prohibits government entities from compelling the
production of, or access to, electronic communication
information or electronic device information without a search
warrant or wiretap order, except under certain specified
emergency situations.
SB 178
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The bill requires government entities executing a warrant, or
requesting information in an emergency situation, to provide
contemporaneous notice to the identified targets or seek a court
order delaying notification for up to 90 days if notification
would adversely affect an investigation. If the warrant or
emergency request does not identify a target, the bill requires
government entities to submit a report on the investigation to
the Department of Justice (DOJ) within three days of executing
the warrant, and requires DOJ to publish the report on its
website.
The bill further requires government agencies that have received
electronic communication information voluntarily to destroy that
information within 90 days unless it obtains the consent of the
information provider or obtains a court order authorizing its
retention.
FISCAL EFFECT:
1)Ongoing annual General Fund costs to DOJ of approximately
$300,000 to research and provide notices to identified
targets; unknown, though likely substantial, ongoing annual
General Fund costs to DOJ for researching and completing
reports for investigations with no identified targets, and
posting local agency reports to its website.
2)Unknown ongoing annual costs for local law enforcement
agencies for providing notices and producing investigation
reports for DOJ publication. Though this bill is not keyed a
local mandate, there could be substantial state mandated
reimbursement of local costs.
COMMENTS:
SB 178
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1)Purpose. According to the author, while communication
technology has advanced dramatically, state privacy law has
remained largely unchanged for many years. Californians use
modern communication technology to connect, work, and learn,
and the state's leading technology companies rely on consumer
confidence in these services to help drive their businesses
and facilitate economic activity. The author believes
consumers are increasingly concerned about warrantless
government access to their mobile devices, email, text
messages, location information, and other metadata, and that
polls indicate consumers believe current legal protections are
inadequate.
The author contends law enforcement increasingly relies on
digital communication and other information to conduct
investigations, claiming Google has experienced a 250%
increase in government demands for information over the past 5
years, while AT&T and Verizon have experienced similar
increases in demands for location information, many of which
were without warrant. The author believes these and similar
companies are concerned about a loss of consumer trust and are
in need of a consistent statewide standard.
2)Apple II Laws in an iPhone 6 World. In 1986, Congress enacted
the Electronic Communications Privacy Act (ECPA), the current
federal statutory framework for surveilling electronic
communication. According to Richard Salgado, the Director for
Law Enforcement and Information Security at Google, in
testimony he delivered to the House Judiciary Subcommittee on
Crime, Terrorism, Homeland Security and Investigations, the
ECPA was foresighted for its time, but today frustrates users'
reasonable expectations of privacy. Salgado and others
contend users expect the same 4th Amendment protections for
information stored online as for information stored on paper
in a mailbox or at home.
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In US v Jones (2012), the US Supreme Court upheld 4th
Amendment privacy rights against warrantless surveillance of a
person's location via a GPS device. In a concurring opinion,
Justice Alito prompted lawmakers to update search and seizure
laws to account for technological changes, believing
legislatures are best placed to balance privacy and public
safety interests. The author contends 16 states have enacted
additional privacy safeguards, with 10 protecting location
information and 6 protecting electronic communication content.
Similarly, the White House recently called on lawmakers to
"ensure the standard of protection for online, digital content
is consistent with that afforded in the physical world."
3)Private Sector Policies. Several technology companies in
California already require a search warrant before disclosing
the contents of communications. According to recent press
reports, Google, Microsoft, Yahoo!, and Facebook all require
warrants in order to provide the contents of emails and
messages to government entities, a standard that exceeds
current US law, but which the companies believe is supported
by the 4th Amendment.
4)Opposition. According to the California State Sheriffs
Association, SB 178 conflates existing procedures for
obtaining certain electronic information under state and
federal law, contains burdensome and unnecessary reporting
requirements, and undermines investigations that are otherwise
compliant with the 4th Amendment. The association contends
existing law already requires prosecutors to undergo judicial
review before obtaining any electronic information, and the
bill's other requirements will hinder law enforcement
investigations.
SB 467 (Leno) of 2013 was similar to this bill and vetoed by
the Governor. In his veto message, the Governor argued
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federal law already requires a warrant, subpoena, or court
order to access electronic communication in most cases, and
the notice requirements of that bill could impede ongoing
criminal investigations.
Analysis Prepared by:Joel Tashjian / APPR. / (916)
319-2081