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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