BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 178|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
UNFINISHED BUSINESS
Bill No: SB 178
Author: Leno (D) and Anderson (R), et al.
Amended: 9/4/15
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 3/24/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 39-0, 6/3/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,
Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno,
Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach,
Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone,
Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Hancock
ASSEMBLY FLOOR: 57-13, 9/8/15 - See last page for vote
SUBJECT: Privacy: electronic communications: search warrant
SOURCE: American Civil Liberties Union
California Newspaper Publishers Association
DIGEST: This bill creates the California Electronic
Communications Privacy Act (CalECPA), which generally requires
law enforcement entities to obtain a search warrant before
accessing data on an electronic device or from an online service
provider.
SB 178
Page 2
Assembly Amendments :
1) Revise and clarify the bill's definition of "specific
consent," and narrow the definition of "imminent" destruction
to "destruction" of evidence, as specified;
2) Revise language describing when a government entity may
access electronic device information with respect to specific
consent of the authorized possessor of the device, as
specified;
3) Further describe when a government entity may compel the
production of or access to electronic communication
information from a service provider or any person or entity
other than the authorized possessor of the device, as
specified;
4) Further describe when a government entity may access
electronic device information by means of physical
interaction or electronic communication with the device only,
as specified;
5) Revise and clarify what a warrant for electronic information
must comply with, including:
a) deleting the provision requiring the warrant to be
limited to only that information necessary to achieve the
objective of the warrant and replacing it with a provision
requiring that the warrant describe with particularity the
information to be seized;
b) providing that the warrant require that any
information obtained through its execution that is
unrelated to the objective of the warrant be sealed and
not subject to further review, use, or disclosure without
a court order; and
c) requiring that a court issue such an order upon a
finding that there is probable cause to believe that the
information is relevant to an active investigation, or
review, use, or disclosure is required by state or federal
law, as specified;
SB 178
Page 3
6) Require that if directed to a service provider, the warrant
shall be accompanied by an order requiring the service
provider to verify the authenticity of electronic information
that it produces, as specified;
7) Clarify a government entity that receives electronic
communication information that is voluntarily provided must
destroy the information, as specified, with certain
exceptions;
8) Specify that this bill's provisions do not limit the
authority of a government entity to use other specified legal
mechanisms to require a service provider to provide
subscriber information, as specified;
9) Provide that the notice required with the warrant or other
means authorized by the bill be provided contemporaneously
with the execution of a warrant, or, in the case of an
emergency, within three days after obtaining the electronic
information;
10)Revise notification provisions to the Department of Justice
("DOJ) where there is no identified target of a warrant or
emergency request at the time of issuance, as specified;
11)Delete language in the bill providing that no evidence
obtained or retained in violation of the bill's provisions
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, and add language providing
that parties may move to suppress any electronic information
obtained or retained in violation of the law, as specified;
and
12)Explicitly provide that the bill's provisions do not
prohibit the intended recipient of an electronic
communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.
ANALYSIS:
SB 178
Page 4
Existing law:
1)Provides, under the US Constitution, 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 an the persons or things
to be seized." (4th Amendment of the U.S. Constitution.)
2)Provides, under the California Constitution, 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 and the persons and things
to be seized." (Article I, Section 13 of the California
Constitution.)
3)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. (Penal Code § 1523.)
4)Provides that a search warrant may be issued only upon
specified grounds. (Penal Code § 1524(a).)
5)Sets forth procedures for a search warrant issued for records
of a foreign corporation that provides electronic
communication services or remote computing services to the
general public, where those records would reveal the identity
of the customers using services, data stored by, or on behalf
of, the customer, the customer's usage of those services, the
recipient or destination of communications sent to or from
those customers, or the content of those communications.
(Penal Code § 154.2)
SB 178
Page 5
6)Provides that a provider of electronic communication or remote
computing service shall disclose to a governmental prosecuting
or investigating agency the name, address, local and long
distance toll billing records, telephone number or other
subscriber number or identity, and length of service of a
subscriber to a customer of that service and types of services
the subscriber or customer utilized when the governmental
entity is granted a search warrant. (Penal Code § 1524.3(a))
7)Provides that a provider of wire or electronic communication
services or a remote computing service, upon the request of a
peace officer, shall take all necessary steps to preserve
records and other evidence in its possession pending the
issuance of a search warrant or a request in writing and an
affidavit declaring an intent to file a warrant to the
provider. Records shall be retained for a period of 90 days
which shall be extended for an additional 90-day upon a
renewed request by the peace officer. (Penal Code § 1524.3(d))
8)Provides that a search warrant cannot be issued but 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. (Penal Code § 1525.)
9)Authorizes the Attorney General, chief deputy attorney
general, chief assistant attorney general, district attorney
or the district attorney's designee to apply to the presiding
judge of the superior court for an order authorizing the
interception of wire or electronic communications under
specified circumstances. (Penal Code §§ 629.50 et. seq.)
This bill:
1) Prohibits a government entity from:
a) Compelling the production of or access to electronic
communication information from a service provider;
b) Compelling the production of or access to electronic
device information from any person or entity other than
the authorized possessor of the device; and
c) Accessing electronic device information by means of
SB 178
Page 6
physical interaction or electronic communication with the
device, although voluntary disclosure to a government
entity is permitted.
2) Permits a government entity to compel the production of or
access to electronic communication information subject 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 pursuant to a
warrant, wiretap order, order for electronic reader records,
or subpoena issued pursuant to existing state law, as
specified.
3) Permits a government entity to access electronic device
information by means of physical interaction or electronic
communication with the device only as follows:
a) Pursuant to a warrant;
b) Pursuant to a wiretap order;
c) With the specific consent of the authorized possessor
of the device;
d) With the specific consent of the owner of the device,
only when the device has been reported as lost or stolen;
e) 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;
f) 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; and
g) If the device is seized from an inmate's possession or
found in an area of a correctional facility where inmates
have access and the device is not in the possession of an
individual and the device is not known or believed to be
the possession of an authorized visitor, except as
otherwise provided by state or federal law.
4) Requires any warrant for electronic information to comply
with the following:
SB 178
Page 7
a) The warrant shall describe with particularity the
information to be seized, including 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;
b) The warrant shall require that any obtained
information unrelated to the objective of the warrant
shall be sealed and not subject to further review, use, or
disclosure unless a court issues an order that there is
probable cause to believe that the information is relevant
to an active investigation, or is otherwise required by
state or federal law; and
c) The warrant or order 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. Warrants
directed to a service provider must be accompanied by an
order to verify the authenticity of the electronic
information produced, as specified.
5) When issuing any warrant for electronic information, or upon
the petition from the target or recipient of the warrant, a
court may, at its discretion, do any or all of the following:
a) Appoint a special master, who is charged with ensuring
that only information necessary to achieve the objective
of the warrant or order is produced or accessed.
b) 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 termination of current or related investigations.
6) Authorizes a service provider to voluntarily disclose
electronic communication information or subscriber
information when that disclosure is not otherwise prohibited
by state or federal law.
7) Requires a government entity that receives electronic
communication information voluntarily provided by a service
provider to destroy that information within 90 days unless
the entity has or obtains the specific consent of the sender
or recipient, obtains a court order, or the information is
SB 178
Page 8
retained for the investigation of child pornography and
related crimes, as specified.
8) Requires a government entity that obtains electronic
information pursuant to an emergency to seek an authorizing
warrant or order, or an approval motion, within three days
after obtaining the electronic information, from the
appropriate court, as specified.
9) Declares that certain of these provisions (#1 through #8) do
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:
a) Require an originator, addressee, or intended
recipient of an electronic communication to disclose any
electronic communication information associated with that
communication;
b) 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; or,
c) Require a service provider to provide subscriber
information.
10)Requires a government entity that executes a warrant or
obtains electronic information in an emergency pursuant to
these provisions to serve or deliver a notice, as specified,
to the identified targets stating that information about the
target has been compelled or requested, and states with
reasonable specificity the nature of the government
investigation under which the information is sought,
including a copy of the warrant, or a written statement
setting forth facts giving rise to the emergency.
11)Authorizes the government entity, when a search warrant is
sought or electronic information obtained under emergency
circumstances, to submit a request supported by a sworn
affidavit for an order delaying notification and prohibiting
any party providing information from notifying any other
SB 178
Page 9
party that information has been sought. Further requires the
court to issue the order if the court determines that there
is reason to believe that notification may have an adverse
result, not to exceed 90 days, and the court may grant
extensions of the delay of up to 90 days each, as specified.
12)Requires, upon expiration of the period of delay of the
notification, the government entity to serve or deliver to
the identified targets of the warrant a document that
includes the information required in 10 above, as well as a
copy of all electronic information obtained or a summary of
that information, and a statement of the grounds for the
court's determination to grant a delay in notifying the
target, as specified.
13)Provides that if there is no identified target of a warrant
or emergency request at the time of issuance, the government
entity shall submit to the DOJ within three days of the
execution of the warrant or issuance of the request all of
the information required in 10 above. If an order delaying
notice is obtained, the government entity shall submit to DOJ
upon the expiration of the period of delay of the
notification the information required in 12 above. DOJ shall
publish those reports on its web site within 90 days of
receipt, and may redact names or other personal identifying
information from the reports.
14)Declares that nothing in these provisions shall prohibit or
limit a service provider or any other party from disclosing
information about any request or demand for electronic
information, except as provided.
15)Permits any person in a trial, hearing, or proceeding to
move to suppress any electronic information obtained or
retained in violation of the Fourth Amendment to the United
States Constitution or of this chapter, as specified.
16)Authorizes the Attorney General to commence a civil action
to compel any government entity to comply with these
provisions.
SB 178
Page 10
17)Authorizes an individual whose information is targeted by a
warrant, order, or other legal process that is inconsistent
with these provisions, 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, to 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, the
California Constitution, or the United States Constitution.
18)Declares 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, court
order, statutory authorization, emergency certification, or
wiretap order issued pursuant to these provisions.
19)Defines the terms "adverse result," "authorized possessor,"
"electronic communication," "electronic communication
information," "electronic communication service," "electronic
device," "electronic device information," "electronic
information," "government entity," "service provider,"
"specific consent," and "subscriber information."
For a full discussion of this bill please see the Senate Public
Safety Committee analysis.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee:
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.
SB 178
Page 11
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.
SUPPORT: (Verified9/8/15)
American Civil Liberties Union (co-source)
California Newspaper Publishers Association (co-source)
Adobe Inc.
Airbnb
American Library Association
Apple Inc.
Asian Americans Advancing Justice
Bay Area Council
California Chamber of Commerce
California Attorneys for Criminal Justice
California Public Defenders Association
Center for Democracy and Technology
Center for Media Justice
Centro Legal de la Raza
Citizens for Criminal Justice Reform
Civil Justice Association of California
Color of Change
Consumer Action
Consumer Federation
Council on American-Islamic Relations
Dropbox
Electronic Frontier Foundation
Engine
Facebook
Foursquare
Google
Internet Archive
Legal Services for Prisoners With Children
LinkedIn
Media Alliance
Microsoft
Mozilla
SB 178
Page 12
NameCheap
National Center for Lesbian Rights
New America: Open Technology Institute
Privacy Rights Clearinghouse
Reddit
Restore the 4th
San Diego Police Officers Association
Small Business California
Snapchat
TechNet
Tech Freedom
The Internet Association
The Utility Reform Network
Twitter
OPPOSITION: (Verified9/8/15)
California Correctional Peace Officers Association
California State Lodge, Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Protect.org
Sacramento County Deputy Sheriffs' Association
ASSEMBLY FLOOR: 57-13, 9/8/15
AYES: Achadjian, Travis Allen, Bigelow, Bloom, Bonilla, Bonta,
Brown, Burke, Campos, Chang, Chau, Chiu, Chu, Cooley,
Dababneh, Dodd, Eggman, Cristina Garcia, Eduardo Garcia,
Gatto, Gomez, Gonzalez, Gordon, Grove, Hadley, Harper, Roger
Hernández, Holden, Jones, Jones-Sawyer, Lackey, Levine, Lopez,
Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin,
Nazarian, Obernolte, Olsen, Patterson, Quirk, Rendon,
Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Weber, Wilk, Wood, Atkins
NOES: Baker, Brough, Cooper, Dahle, Frazier, Gray, Irwin,
Linder, Medina, Perea, Ridley-Thomas, Waldron, Williams
NO VOTE RECORDED: Alejo, Calderon, Chávez, Daly, Beth Gaines,
Gallagher, Gipson, Kim, O'Donnell, Salas
SB 178
Page 13
Prepared by:Mary Kennedy and Alison Anderson / PUB. S. /
9/9/15 9:41:33
**** END ****