BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 602| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 602 Page 2 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 CONTINUED SB 602 Page 3 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 CONTINUED SB 602 Page 4 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 CONTINUED SB 602 Page 5 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 CONTINUED SB 602 Page 6 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 CONTINUED SB 602 Page 7 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 CONTINUED SB 602 Page 8 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 **** END **** CONTINUED