BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 602|
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THIRD READING
Bill No: SB 602
Author: Yee (D)
Amended: 4/25/11
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 04/12/11
AYES: Evans, Harman, Corbett, Leno
NO VOTE RECORDED: Blakeslee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Reader Privacy Act
SOURCE : American Civil Liberties Union
Electronic Frontier Foundation
DIGEST : This bill enacts the Reader Privacy Act, placing
restrictions relative to user information on commercial
businesses that offer "book services," the rental,
purchase, borrowing, browsing, or viewing of books, to the
public.
ANALYSIS : Existing law, the U.S. Constitution, provides
that Congress shall make no law ? abridging the freedom of
speech. (U.S. Const. amend. I.) The First Amendment is
binding on the states through the due process clause of the
Fourteenth Amendment. ( Gitlow v. New York (1925) 268 U.S.
652.)
Existing law, the U.S. Constitution, provides that "Ýt]he
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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, and the persons or things to be seized." (U.S.
Const. amend. IV.)
Existing law, the California Constitution, provides that
all people have inalienable rights, including the right to
pursue and obtain privacy. (Cal. Const. art. I, sec. 1.)
Existing law, the California Constitution, guarantees that
"Ýe]very person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the
abuse of this right. A law may not restrain or abridge
liberty of speech or press." (Cal. Const. art. I, sec. 2.)
Existing law requires businesses that own or license
personal information about California residents to
implement and maintain reasonable security procedures and
practices appropriate to the nature of the information, to
protect the personal information from unauthorized access,
destruction, use, modification, or disclosure. (Civ. Code
Sec. 1798.81.5.)
Existing law defines "personal information" to mean any
information that identifies, relates to, describes, or is
capable of being associated with, a particular individual,
including, but not limited to, his or her name, signature,
social security number, physical characteristics or
description, address, telephone number, passport number,
driver's license or state identification card number,
insurance policy number, education, employment, employment
history, bank account number, credit card number, debit
card number, or any other financial information, medical
information, or health insurance information. (Civ. Code
Sec. 1798.80.)
Existing law provides various grounds for the issuance of a
search warrant and specifies 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
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things and the place to be searched. (Pen. Code Secs.
1524, 1525.)
Existing law, the Civil Discovery Act, provides for the
scope of discovery in civil actions and permits a party to
obtain discovery by inspecting documents, tangible things,
land or other property, and electronically stored
information. (Code Civ. Proc. Sec. 2016.010 et seq.)
Existing law exempts library circulation records from
disclosure under the California Public Records Act.
Existing law provides that those library records are
confidential and shall not be disclosed to any person,
local agency, or state agency except: (1) to a person
acting within the scope of his or duties within library
administration; (2) to a person with written authorization
from the individual to whom the records pertain; or (3) by
order of the appropriate superior court. (Gov. Code Secs.
6254(j), 6267.)
Existing state and federal law prohibit video stores from
disclosing a customer's personal information, including
video tape sales or rental information, to any other person
without the written consent of the customer, except in
certain circumstances. (18 U.S.C. Sec. 2710; Civ. Code
Sec. 1799.3.)
This bill provides that a book service provider may 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 and of the following circumstances:
1.A book service provider must disclose a user's personal
information pursuant to a search warrant issued by a duly
authorized court with jurisdiction over an offense under
investigation if the following conditions are met: (i)
the court issuing the warrant finds that the person or
entity seeking disclosure has a compelling interest in
obtaining the personal information sought; (ii) the court
issuing the warrant finds that the information cannot be
obtained through less intrusive means; (iii) the person
or entity seeking disclosure gives the provider
reasonable notice of the proceeding prior to issuance of
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the warrant; (iv) the provider is given the opportunity
to appear and contest the issuance of the warrant prior
to its issuance; and (v) notice of the warrant is given
to the book service user contemporaneous with execution
of the warrant, 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 book service provider must disclose a user's personal
information pursuant to a court order in a pending civil
or administrative action provided that the following
conditions are met: (i) the court issuing the order
finds that the person or entity seeking disclosure has a
compelling interest in obtaining the personal information
sought; (ii) the court issuing the order finds that the
information cannot be obtained through less intrusive
means; (iii) 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 so that the user and
provider have the opportunity to appear and contest the
issuance of the court order; and (iv) the provider
refrains from disclosing the personal information until
it provides notice to the user about the issuance of the
court 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 book service provider must disclose the user's personal
information if the user has given his or her informed,
affirmative consent to the specific disclosure for a
particular purpose;
4.A book service provider may disclose the user's personal
information to a government entity if the government
entity asserts, and the book service provider in good
faith believes, that there is an imminent danger of death
or serious physical injury requiring the immediate
disclosure of the information and there is insufficient
time to obtain a warrant. Under this exception, the
government entity must give to the provider a written
statement describing the facts giving rise to the
emergency upon request or no later than 48 hours after
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seeking disclosure; and
5.A book service provider may disclose a user's personal
information to a government entity if the provider
believes in good faith that the personal information is
evidence directly related and relevant to a crime against
the provider or that book service user.
This bill requires any court issuing a search warrant or
order requiring disclosure of a book user's personal
information to impose appropriate safeguards against the
unauthorized disclosure of personal information by the
provider pursuant to the warrant or order.
This bill provides that, except as proof in an action for a
violation of the bill's provisions, no evidence obtained in
violation of the bill shall be admissible in any civil,
administrative, or other proceeding.
This bill makes violations of its provisions subject to the
following penalties:
1.A provider who knowingly provides a book service user's
personal information about a user to a government entity
in violation of the bill's provisions shall be subject to
a civil penalty of up to $500 for each violation, which
may be recovered in a civil action brought by the book
user; and
2.A provider who knowingly provides a user's personal
information to a government entity in violation of the
bill shall also be subject to a civil penalty of up to
$500 for each violation which may be assessed and
recovered in a civil action brought by the Attorney
General, any district attorney, city attorney, or
specified city prosecutor. This bill would allocate any
penalties collected when an action is brought by these
government entities, as specified.
This bill provides that a civil action brought pursuant to
the bill must be commenced within two years after the date
upon which the claimant first discovered the violation.
This bill provides that, if a book service provider
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reasonably relies on a warrant or court order for the
release of a user's personal information or relies on any
of the bill's specified exceptions to confidentiality, that
reliance is a complete defense to any civil,
administrative, or criminal action provided that the
reasonable reliance is objective.
This bill requires a book service provider to prepare a
report to be made publicly available in an online,
searchable format by March 1 of every year. That report
must include specified information, including the number of
federal and state warrants requesting disclosure of a
user's personal information that the provider has received
in the previous year. The report must also include this
same information for any grand jury subpoenas, civil and
administrative subpoenas, court orders, and requests for
information made with the user's informed consent received
by the provider during the prior year.
This bill also requires that the report contain the number
of times that personal information has been disclosed by
the provider, the number of times that the provider
contests the demand for information, and the number of
times that the user contests the demand.
This bill provides that nothing in the bill shall otherwise
affect the rights of any person under the California
Constitution or any other law.
This bill contains related definitions, including defining
"personal information" means all of the following:
1.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 of the Civil Code.
2.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.
3.Any information that relates to, or is capable of being
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associated with, a particular user's access to or use of
a book service or a book, in whole or in partial form.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/3/11)
American Civil Liberties Union (co-source)
Electronic Frontier Foundation (co-source)
Californians Aware
Consumer Federation of California
Calegislation
Privacy Activism
Privacy Rights Clearinghouse
ARGUMENTS IN SUPPORT : According to the author's office:
As readers increasingly move away from borrowing books
from libraries and buying physical books in bookstores
and toward using electronic devices and online book
services to access and read books, California
statutory law needs to codify the privacy and free
speech safeguards for expressive records guaranteed by
the California Constitution ?
Currently, reader protections in California statutory
law only extend to library records, not records from
books browsed or purchased from online or physical
booksellers. Current federal law also does not
safeguard book records.
As Californians increasingly rely on online services
to browse, read, and buy books, it is essential that
state law keep pace and safeguard readers in the
digital age. Many bookstores already collect
information about readers and their purchases.
Digital book services collect even more detailed
information: which books are browsed, how long each
page is viewed, and digital notes made in the margins.
Current law doesn't anticipate this new digital
reality. Without strong privacy protections, the
reading records increasingly kept by companies can be
targeted by government surveillance as well as in
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legal proceedings like divorce cases and custody
battles. Ýcitations omitted.]
The American Civil Liberties Union writes that:
Ýu]nder SB 602, consumers may feel more comfortable
using new digital book services and technology without
worrying that their personal information will be
unprotected. California should promote the use of new
technology by ensuring that upgraded technology does
not mean downgraded privacy.
The Electronic Frontier Foundation writes:
The books we choose to read reveal privacy information
about our political and religious beliefs, health
concerns, and our personal lives. Maintaining reader
privacy is fundamental to the dignity of Californians
and to ensure that they can continue to enjoy the full
range of freedom of expression, inquiry and thought.
RJG:nl 5/4/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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