BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1121 Hearing Date: April 19, 2016
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|Author: |Leno |
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|Version: |March 29, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Privacy: Electronic Communications: Search Warrant
HISTORY
Source: Author
Prior Legislation:SB 178 (Leno) - Ch. 651, Stats. 2015
Support: Unknown
Opposition:None known
PURPOSE
The purpose of this bill is to make technical and clean-up
changes to the Electronic Communications Privacy Act.
Existing law provides that a government entity may access
electronic device information by means of a physical interaction
or electronic communication device only: pursuant to a warrant;
wiretap; with authorization of the possessor of the device; with
consent of the owner of the device; in an emergency; if seized
from an inmate. (Penal Code § 1546.1(c))
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This bill also allows access in response to a contact made by a
member of the public using a 911 emergency communication system,
but only to access information concerning the location of the
electronic device that initiated the contact.
Existing law provides that if a government entity receives
electronic communication voluntarily it shall destroy that
information within 90 days except under specified circumstances.
(Penal Code § 1546.1(g))
This bill adds an additional exception if the service provider
or subscriber is 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 information to the entity.
Existing law provides for notice to the target of a warrant or
an emergency obtaining electronic information to be provided
either contemporaneously with the service of the warrant or
within three days in an emergency situation. (Penal Code §
1546.2(a))
This bill clarifies that it is three court days for the notice.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
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In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or legislative
drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need for the Bill
According to the author:
Through the implementation process of CalECPA, several
technical, clarifying changes have been identified
that will improve compliance with the new law. This
bill addresses those concerns and is a clean-up bill
to SB 178.
2. Technical Changes to the CalECPA
This bill makes the following technical or clean-up changes to
the CalECPA which was created by SB 178 (Leno) Chapter 651,
Stats. 2015:
Provides that emergency responders may access location
information from a device making a 911 call without being
subject to additional limitations or requirements;
Provides that electronic communications information
disclosed by prisons, jails, or juvenile detention
facilities is not subject to mandatory deletion after 90
days if all parties to the communication were informed that
the facility my disclose the information.
Provides that notice in an emergency must be provided
within three court days rather than three calendar days.
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