BILL NUMBER: SB 602 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 6, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 30, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Senator Yee
FEBRUARY 17, 2011
An act to add Title 1.81.15 (commencing with Section 1798.90) to
Part 4 of Division 3 of the Civil Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 602, as amended, Yee. Reader Privacy Act.
The California Public Records Act requires state and local
agencies to make their records available for public inspection and,
upon request of any person, to provide a copy of any public record
unless the record is exempt from disclosure. The act provides that
all registration and circulation records of any library that is in
whole or in part supported by public funds is
are confidential and shall not be disclosed to any person,
except as provided.
Existing law protects the privacy of personal information,
including customer records, and requires a business that owns or
licenses personal information about a California resident to
implement and maintain reasonable security procedures and practices
appropriate to the nature of the information, in order to protect the
personal information from unauthorized access, destruction, use,
modification, or disclosure.
Existing law provides various grounds for the issuance of a search
warrant, and 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 and the place to be searched.
The Civil Discovery Act generally provides for the scope of
discovery in civil actions and proceedings, and permits a party to a
civil action to obtain discovery by inspecting documents, tangible
things, and land or other property in the possession of any other
party to the action.
This bill would enact the Reader Privacy Act, which would, among
other things, prohibit a commercial provider of a book service, as
defined, from disclosing, or being compelled to disclose, any
personal information relating to a user of the book service, subject
to certain exceptions. The bill would require a court, when
considering whether to issue a search warrant
or an order in a pending civil or administrative
action, to make specified findings, including that the person or
entity seeking disclosure of personal information of a user of a book
service has a compelling interest in obtaining that information.
The bill would additionally require a court having jurisdiction
over an offense to make specified findings before issuing an order to
disclose the personal information of a user to a government
entity. The bill would impose civil penalties on a
provider of a book service for knowingly disclosing a user's personal
information to a government entity in violation of these provisions,
except as otherwise provided. The bill would require that any
provider of a book service prepare a specified report relating to
demands for disclosure of personal information of users of the book
service, and publish that information in a searchable format on the
Internet or if the provider does not have an Internet Web site,
to prominently post the report on its premises
or send the report annually to the O ffice
of Privacy Protection .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Title 1.81.15 (commencing with Section 1798.90) is
added to Part 4 of Division 3 of the Civil Code, to read:
TITLE 1.81.15. Reader Privacy Act
1798.90. (a) This title shall be known and may be cited as the
Reader Privacy Act.
(b) For purposes of this section:
(1) "Book" means paginated or similarly organized content in
printed, audio, electronic, or other format, including fiction,
nonfiction, academic, or other works of the type normally published
in a volume or volumes.
(2) "Book service" means a service that, as its primary purpose,
provides the rental, purchase, borrowing, browsing, or viewing of
books.
(3) "Government entity" means any state or local agency,
including, but not limited to, a law enforcement or any other
investigative agency, department, division, bureau, board, or
commission, or any individual acting or purporting to act for or on
behalf of a state or local agency.
(4) "Personal information" means all of the following:
(A) Any information that identifies, relates to, describes, or is
associated with a particular user, including, but not limited to, the
information specifically listed in Section 1798.80.
(B) A unique identifier or Internet Protocol address, when that
identifier or address is being used to identify, relate to, describe,
or be associated with a particular user of a book service or book,
in whole or in partial form.
(C) Any information that relates to, or is capable of being
associated with, a particular user's access to or use of a book
service or a book, in whole or in partial form.
(5) "Provider" means any commercial entity offering a book service
to the public.
(6) "User" means any person or entity that uses a book service.
(c) A provider shall not knowingly disclose to any government
entity, or be compelled to disclose to any person, private entity, or
government entity, any personal information of a user, except under
any of the following circumstances:
(1) A provider shall disclose personal information of a user
to a government entity only pursuant to a search
warrant court order issued by a duly authorized
court with jurisdiction over an offense that is under
investigation using the procedures described in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code, if all of the following and only if all of the
following conditions are met:
(A) The court issuing the order finds that probable cause exists
to believe the personal information requested is relevant evidence to
the investigation of an offense and any of the grounds in Section
1524 of the Penal Code is satisfied.
(A)
(B) The court issuing the warrant
order finds that the person or entity seeking disclosure
has a compelling interest in obtaining the personal information
sought.
(B)
(C) The court issuing the warrant
order finds that the personal information sought cannot be
obtained by the person or entity seeking disclosure through less
intrusive means.
(C)
(D) The person or entity seeking disclosure provides
the provider with reasonable notice of the proceeding prior to the
issuance of the warrant order .
(D)
(E) The opportunity to appear and contest the issuance
of the warrant order is afforded to the
provider prior to the issuance of the warrant
order .
(E)
(F) Notice of the warrant order
is given to the user by the person or entity seeking
disclosure contemporaneous with execution of the warrant
order , unless there is a judicial determination
of a strong showing of necessity to delay that notification for a
reasonable period of time, not to exceed seven days.
(2) A provider shall disclose personal information of a user
pursuant to a court order in a pending civil or administrative
action, if all of the following conditions are met:
(A) The court issuing the order finds that the person or entity
seeking disclosure has a compelling interest in obtaining the
personal information sought.
(B) The court issuing the order finds that the personal
information sought cannot be obtained by the person or entity seeking
disclosure through less intrusive means.
(C) The person or entity seeking disclosure takes reasonable steps
to provide the user and the provider with reasonable notice of the
proceeding prior to the issuance of the court order in a timely
manner to allow the user and provider the opportunity to appear and
contest the issuance of the court order.
(D) The provider refrains from disclosing any personal information
pursuant to the court order until it provides notice to the user
about the issuance of the order and the ability to appear and quash
the order, and the user has been given a reasonable opportunity to
appear and quash the order.
(3) A provider shall disclose the personal information of a user
to any person if the user has given his or her informed, affirmative
consent to the specific disclosure for a particular purpose.
(4) A provider may disclose to a government entity, if the
government entity asserts, and the provider in good faith believes,
that there is an imminent danger of death or serious physical injury
requiring the immediate disclosure of the requested personal
information and there is insufficient time to obtain a
warrant court order . The government entity
seeking the disclosure shall provide the provider with a written
statement setting forth the facts giving rise to the emergency upon
request or no later than 48 hours after seeking disclosure.
(5) A provider may disclose personal information of a user of a
book service to a government entity if the provider in good faith
believes that the personal information is evidence directly related
and relevant to a crime against the provider or that user of the book
service.
(d) (1) Any court issuing a search warrant or
an order requiring the disclosure of personal information
of a user of a book service shall impose appropriate safeguards
against the unauthorized disclosure of personal information by the
provider pursuant to the warrant or order.
(2) The court may, in its discretion, quash or modify a
warrant or court an order requiring the
disclosure of the user's personal information upon a motion made by
the user, provider, or person or entity seeking disclosure.
(e) Except as proof in an action for a violation of this section,
no evidence obtained in violation of this section shall be admissible
in any civil, administrative, or other proceeding.
(f) (1) Violations of this section shall be subject to the
following penalties:
(A) Any provider that knowingly provides personal information
about a user to a government entity in violation of this section
shall be subject to a civil penalty not to exceed five hundred
dollars ($500) for each violation, which may be recovered in a civil
action brought by the person who is the subject of the records.
(B) Any provider that knowingly provides personal information to a
government entity in violation of this section shall, in addition to
the penalty prescribed by subparagraph (A), be subject to a civil
penalty not to exceed five hundred dollars ($500) for each violation,
which may be assessed and recovered in a civil action brought by the
Attorney General, by any district attorney or city attorney, or by a
city prosecutor in any city having a full-time city prosecutor, in
any court of competent jurisdiction.
(2) If an action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund. If
the action is brought by a district attorney, the penalty collected
shall be paid to the treasurer of the county in which the judgment
was entered. If the action is brought by a city attorney or city
prosecutor, one-half of the penalty shall be paid to the treasurer of
the city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered.
(3) The penalties provided by this section are not the exclusive
remedy and do not affect any other relief or remedy provided by law.
(4) A civil action brought pursuant to this section shall be
commenced within two years after the date upon which the claimant
first discovered the violation.
(g) An objectively reasonable reliance by the provider on a
warrant or court order for the disclosure of
personal information of a user of a book service, or on any of the
enumerated exceptions to the confidentiality of a user's personal
information set forth in this section, is a complete defense to any
civil, administrative, or criminal action.
(h) Unless disclosure of information pertaining to a particular
request or set of requests is specifically prohibited by law, a
provider shall prepare a report including all of the following
information, to the extent it can be reasonably determined:
(1) The number of federal warrants, state warrants,
grand jury subpoenas, civil and administrative subpoenas,
federal and state civil and criminal court orders, and
requests for information made with the informed consent of the user
as described in paragraph (3) of subdivision (a)
(c) , seeking disclosure of any personal information of a
user related to the access or use of a book service or book, received
by the provider from January 1 to December 31, inclusive, of the
previous year.
(2) The number of disclosures made by the provider pursuant to
paragraphs (5) and (6) of subdivision (a) (4)
and (5) of subdivision (c) from January 1 to December 31,
inclusive, of the previous year.
(3) For each category of demand or disclosure, the provider shall
include all of the following information:
(A) The number of times notice of a warrant or a
court order in a civil criminal,
civil, or administrative action has been provided by the
provider and the date the notice was provided.
(B) The number of times personal information has been disclosed by
the provider.
(C) The number of times no personal information has been disclosed
by the provider.
(D) The number of times the provider contests the demand.
(E) The number of times the user contests the demand.
(F) The number of users whose personal information was disclosed
by the provider.
(G) The type of personal information that was disclosed and the
number of times that type of personal information was disclosed.
(i) Reports prepared pursuant to subdivision (h) shall be made
publicly available in an online, searchable format on or before March
1 of each year. If the provider does not have an Internet Web
site, the provider shall post the reports prominently on its premises
or send the reports to the Office of Privacy Protection on or before
March 1 of each year.
(j) Any provider subject to Section 22575 of the Business and
Professions Code shall create a prominent hyperlink to its latest
report published pursuant to subdivision (i) in the disclosure
section of the privacy policy applicable to its book service on or
before March 1 of each year.
(k) Nothing in this section shall otherwise affect the rights of
any person under the California Constitution or any other law.