Amended in Assembly June 14, 2016

Amended in Senate March 29, 2016

Senate Bill No. 1121

Introduced by Senator Leno

February 17, 2016

An act to amend Sections begin delete 1546.1 end delete begin insert 1546, 1564.1, end insert and 1546.2 of the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

SB 1121, as amended, Leno. Privacy: electronic communications: search warrant.

Existing law prohibits 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, order for electronic reader records, or subpoena issued pursuant to specified conditions, except for emergency situations, as defined. Existing law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device.

This bill would additionally authorize a government entity, without a warrant or other order, to access electronic device information by means of physical interaction or electronic communication with the device begin delete in response to a contact made by a member of the public using a 911 emergency communications system end delete for the purpose of accessing information concerning the location of the electronic device begin delete that initiated that contact. end delete begin insert in order to respond to an emergency 911 call. The bill would also provide that the definition of “electronic device” for purposes of the bill does not include a magnetic strip end insert begin insert on a driver’s license or identification card, as prescribed. end insert

Existing law authorizes a service provider to voluntarily disclose electronic communication information or subscriber information. Existing law requires a government entity to destroy that information within 90 days unless one or more specified circumstances apply, including, among others, the begin insert government end insert entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.

This bill would also authorize a government entity to retain the information beyond 90 days if the service provider or subscriber is begin insert , or discloses to, end insert a federal, state, or local prison, jail, or juvenile detention facility, and all parties to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the begin insert government end insert entity.

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1546 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

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) 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. begin insert An electronic device
does not include the magnetic strip end insert begin insert on a driver’s license or an
identification card issued by this state or a driver’s license or
equivalent identification card issued by another state. end insert

(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 or a member of the intended audience of an electronic
communication. Specific consent does not require that the
originator of the communication have actual knowledge that an
addressee, intended recipient, or member of the specific audience
is a government entity.

(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.

begin delete SECTION 1. end delete

begin insert SEC. 2. end insert   

Section 1546.1 of the Penal Code is amended to read:

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.
This section does not prohibit the intended recipient of an electronic
communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.

(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.

(4) Pursuant to a subpoena issued pursuant to existing state law,
provided that the information is not sought for the purpose of
investigating or prosecuting a criminal offense, and compelling
the production of or access to the information via the subpoena is
not otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any authority under state
law to compel the production of or access to electronic information.

(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 begin insert government end insert
entity shall only access electronic device information in order to
attempt to identify, verify, or contact the owner or authorized
possessor of the device.

(7) Except where prohibited by state or federal law, if the device
is seized from an inmate’s possession or found in an area of a
correctional facility begin delete under the jurisdiction of the Department of
Corrections and Rehabilitation end delete begin insert or a secure area of a local detention
facility end insert where inmates have begin delete access and end delete begin insert access, end insert the device is not in
the possession of an begin delete individual end delete begin insert individual, end insert and the device is not
known or believed to be the possession of an authorized visitor.
Nothing in this paragraph shall be construed to supersede or
override Section 4576.

begin delete

(8) In response to a contact made by a member of the public
using a 911 emergency communications system, but only to access
information concerning the location of the electronic device that
initiated that contact.

end delete begin insert

(8) If the government entity accesses information concerning
the location or the telephone number of the electronic device in
order to respond to an emergency 911 call.

end insert

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

(1) The warrant shall describe with particularity the information
to be seized by begin delete specifying the time periods covered and, end delete begin insert specifying, end insert
as appropriate and reasonable, begin insert the time periods covered, end insert the target
individuals or accounts, the applications or services covered, and
the types of information begin delete sought. end delete begin insert sought, provided, however, that
in the case of a warrant described in paragraph (1) of subdivision
(c), the court may determine that it is not appropriate to specify
time periods because of the specific circumstances of the
investigation, including, but not limited to, the nature of the device
to be searched. end insert

(2) The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and begin insert shall end insert not begin insert be end insert subject to
further review, use, or disclosure begin delete without a court order. end delete begin insert except
pursuant to a court order or to comply with discovery as required
by Sections 1054.1 and 1054.7. end insert A court shall 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.

(3) 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. 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 by
providing an affidavit that complies with the requirements set forth
in Section 1561 of the Evidence Code. Admission of that
information into evidence shall be subject to Section 1562 of the
Evidence Code.

(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 either or both 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 the termination of
the current investigation and any related investigations or
proceedings.

(f) A service provider may voluntarily 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 one or more
of the following circumstances apply:

(1) The begin insert government end insert entity has or obtains the specific consent
of the sender or recipient of the electronic communications about
which information was disclosed.

(2) The begin insert government end insert entity 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.

(3) The begin insert government end insert entity reasonably believes that the
information relates to child pornography and the information is
retained as part of a multiagency database used in the investigation
of child pornography and related crimes.

(4) The service provider or subscriber begin delete is end delete begin insert is, or discloses the
information to, end insert a federal, state, or local prison, jail, or juvenile
detention facility, and all begin delete parties end delete begin insert participants end insert to the electronic
communication were informed, prior to the communication, that
the service provider may disclose the information to the
begin insert government end insert entity.

(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 begin insert government end insert entity shall, within
three court days after obtaining the electronic information, file
with the appropriate court an application for a warrant or order
authorizing obtaining the electronic information or a motion
seeking approval of the emergency disclosures that shall set forth
the facts giving rise to the emergency, and if applicable, a request
supported by a sworn affidavit for an order delaying notification
under paragraph (1) of subdivision (b) of Section 1546.2. The court
shall promptly rule on the application or motion and shall order
the immediate destruction of all information obtained, and
immediate notification pursuant to subdivision (a) of Section
1546.2 if begin delete such end delete begin insert that end insert notice has not already been given, upon a
finding that the facts did not give rise to an emergency or upon
rejecting the warrant or order application on any other ground.

begin insert This subdivision does not apply if the government entity obtains
information concerning the location of the electronic device in
order to respond to an emergency 911 call. 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 any 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.

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

begin insert

(j) Nothing in this chapter shall be construed to alter the
authority of a government entity that owns an electronic device to
compel an employee who is authorized to possess the device to
return the device to the government entity’s possession.

end insert

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 1546.2 of the Penal Code is amended to read:

1546.2.  

(a) Except as otherwise provided in this section, any
government entity that executes a warrant, or obtains electronic
information in an emergency pursuant to Section 1546.1, shall
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. The notice shall be provided contemporaneously with
the execution of a warrant, or, in the case of an emergency, within
three court days after obtaining the electronic information.

(b) (1) When a warrant is sought or electronic information is
obtained in an emergency 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. The department
may redact names or other personal identifying information from
the reports.

(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.