BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 602
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          Date of Hearing:   June 21, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                       SB 602 (Yee) - As Amended:  June 6, 2011

                              As Proposed to be Amended

           SENATE VOTE  :   40-0
           
          SUBJECT  :  READER PRIVACY ACT

           KEY ISSUE  :  SHOULD BOOK PROVIDERS BE PROHIBITED FROM DISCLOSING 
          PERSONAL INFORMATION ABOUT THEIR USERS WITHOUT A COURT ORDER 
          UNDER SPECIFIED STANDARDS?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill is sponsored by the American Civil Liberties Union 
          (ACLU) and the Electronic Frontier Foundation (EFF) to codify 
          explicit privacy protections for books and comparable materials 
          so that bookstores and other providers of book services as well 
          as government agencies, courts and private parties have clear 
          guidelines by which to evaluate attempts to obtain this 
          sensitive personal information.  The bill, supported by Google 
          and other booksellers, would enact the Reader Privacy Act under 
          which book services providers may not disclose to any person or 
          entity the personal information of a user related to the use of 
          a book, except pursuant to a court order under specified 
          standards.  Despite the broad values of the sponsors and author, 
          the bill is quite targeted.  It does not require court orders 
          where the user consents to the disclosure, or if there was an 
          imminent danger of death or serious physical injury that 
          requires the immediate disclosure or if the provider believes in 
          good faith that the personal information is evidence directly 
          related and relevant to a crime against the provider or the book 
          service user.  More importantly, the bill does not limit the 
          ability of the government or private parties to obtain book 
          information from any source other than defined book service 
          providers.  This limitation is particularly noteworthy because 
          the bill does not prohibit book providers from voluntarily 
          sharing personal information with business partners, such as 
          third-party marketers.  Prior to proposed amendments, the 








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          California District Attorneys Association expressed concerns 
          about the bill's interplay with federal law, which overlaps to 
          some extent regarding certain newspapers and books and makes 
          certain searches unlawful while exempting others.  The author's 
          proposed amendments are believed to be responsive to these 
          concerns.    

           SUMMARY  :  Protects unauthorized disclosure of private 
          information regarding books and book readers.  Specifically, 
           this bill  :   

          1)Provides that a book service provider may not knowingly 
            disclose to any government entity, or be compelled to disclose 
            to a government entity or any private person or entity, a 
            user's personal information related to the use of a book or 
            part of a book, except as follows: 

             a)   To a law enforcement entity pursuant to a court order 
               issued by a duly authorized court with jurisdiction over an 
               offense under investigation if the following conditions are 
               met: 

               i)     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 (i.e., grounds for a search warrant) is 
                 satisfied.  

               ii)    The court issuing the order finds that the person or 
                 entity seeking disclosure has a compelling interest in 
                 obtaining the personal information sought; 

               iii)   The court issuing the order finds that the 
                 information cannot be obtained through less intrusive 
                 means; 

               iv)    The person or entity seeking disclosure gives the 
                 provider reasonable notice and the opportunity to appear 
                 and contest the issuance of the order prior to its 
                 issuance; and 

               v)     Notice of the order is given to the book service 
                 user contemporaneous with execution of the order, unless 
                 there is a judicial determination of a strong showing of 








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                 necessity to delay that notification for a reasonable 
                 period of time, not to exceed seven days.

             b)   To a non-law enforcement government entity pursuant to a 
               court order issued by a duly authorized court with 
               jurisdiction over an offense that is under investigation by 
               a non-law enforcement government entity, or to a non-law 
               enforcement government entity or a private person or entity 
               pursuant to a court order in a pending civil or 
               administrative action brought by a non-law enforcement 
               governmental entity, private person or governmental entity, 
               if all of 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 personal 
                 information sought cannot be obtained by the person or 
                 entity seeking disclosure through less intrusive means.

               iii)   The person or entity seeking disclosure provides the 
                 provider with reasonable notice of the proceeding in a 
                 timely manner prior to the issuance of the court order to 
                 allow the user and provider the opportunity to appear and 
                 contest the issuance of the court order.

               iv)    The provider refrains from disclosing any personal 
                 information pursuant to the court order until it provides 
                 notice in a timely manner 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 of no less than 
                 35 days.

          2)Provides that a book service provider must 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 that particular purpose.

          3)Provides that 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 








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            information and there is insufficient time to obtain an order. 
             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 
            seeking disclosure.

          4)Provides that 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. 

          5)Provides that the act does not make it unlawful for a law 
            enforcement entity subject to 42 U.S.C. section 2000aa to 
            obtain a search warrant for a user's personal information 
            pursuant to otherwise applicable law in connection with the 
            investigation or prosecution of a criminal offense where there 
            is probable cause to believe that the person possessing such 
            information has committed or is committing a criminal offense 
            involving the production, possession, receipt, mailing, sale 
            distribution, shipment or transportation of child pornography, 
            the sexual exploitation of children, or the sale or purchase 
            of children under sections 2251, 2251a, 2252, or 2252a of 
            title 18 of the United States Code.  Moreover, this section 
            does not prevent a provider from complying with a proper 
            search warrant issued by a duly authorized court in connection 
            with such an investigation or prosecution.

          6)Requires any court issuing a search order or civil discovery 
            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 order. 

          7)Provides that, except 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. 

          8)Makes knowing disclosure to governmental entities a violation 
            of its provisions subject to the following penalties:
            
             a)   a provider who knowingly provides a book service user's 
               personal information shall be subject to a civil penalty of 
               up to $500 for each violation, which may be recovered in a 








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               civil action brought by the book user.

             b)   a provider who knowingly provides a user's personal 
               information 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. 

          9)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. 

          10)Provides that, if a book service provider reasonably relies 
            on a court order for the release of a user's personal 
            information or relies on any of the bill's specified 
            exceptions to confidentiality, the provider's reliance is a 
            complete defense to any civil action provided that the 
            reasonable reliance is objective. 

          11)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 and orders 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, 
            and requests for information made with the user's informed 
            consent received by the provider during the prior year.  

          12)Provides that nothing in the bill shall otherwise affect the 
            rights of any person under the California Constitution or any 
            other law. 

           EXISTING LAW  :  

           1)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.)
           








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           2)Provides that "Ýt]he 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 Orders 
            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.)  

           3)Provides that all people have inalienable rights, including 
            the right to pursue and obtain privacy.  (Cal. Const. art. I, 
            sec. 1.)  

          4)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.)

          5)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.)

          6)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.)

          7)Provides various grounds for the issuance of a search order 
            and specifies that a search order 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 things and the place to be 
            searched.  (Pen. Code Sections. 1524, 1525.)

          8)Provides for the scope of discovery in civil actions and 








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            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.)

          9)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 
            Sections 6254(j), 6267.)

          10)Prohibits 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.)

           COMMENTS  :  The author explains the reason for the bill as 
          follows:

               The books we read reveal private, often sensitive 
               information about our political and religious beliefs, our 
               health concerns, and our personal lives. Throughout 
               history, government and third parties have tried to collect 
               evidence of these reading habits to trample unpopular ideas 
               and beliefs and watch activists. That's why California law 
               has long recognized the importance of safeguarding reading 
               records and other expressive material. 

               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. 

               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 and provide clear guidelines for government 
               and third party access to sensitive reading records. 








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               Currently, reader protections in California statutory law 
               only extend to library records, not records concerning 
               books browsed or purchased from online or physical 
               booksellers.  Current federal statutory law also does not 
               safeguard book records.

               The Reader Privacy Act of 2011 updates reader privacy laws 
               by mirroring the strong privacy and free speech standards 
               in California law - ensuring that government and third 
               parties cannot compel disclosure of private reading records 
               without proper justification.

          Co-sponsor ACLU 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 (EFF), co-sponsor, writes in 
          support:

               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.

           This Bill Applies to Both Physical and Electronic Books and 
          Records - Including Newly Available and Highly Revealing 
          Electronic Data - and To Both Internet and "Bricks and Mortar" 
          Book Retailers.   The sale of electronic books (e-books) has 
          increased significantly over the last several years.  A recent 
          report by the Association of American Publishers indicated that 
          sales of e-books in January 2011 "increased by more than 115 
          percent compared to the same time the year before."  ("E-book 
          sales jump at the start of 2011," The Christian Science Monitor, 
          March 18, 2011.)  Sales of hardcover and paperback books, in 
          contrast, continue to fall.  Amazon now reportedly sells more of 
          its electronic Kindle books than both paperback and hardcover 
          books, while Barnes & Noble recently reported that its e-book 
          outsold physical books on its website.  
           








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          As e-books have increased in popularity so have privacy concerns 
          associated with their use.  A March 2010 report by the ACLU 
          described the privacy implications of e-books: 

               Digital book services have the ability to collect and 
               retain very detailed information about readers.  The level 
               of detail that these services can collect would require an 
               offline library or bookstore to hire an agent to follow 
               each individual patron around the stacks, throughout their 
               day, and finally into their homes.  Digital book providers 
               can easily track what books an individual considers, how 
               often a given book is read, how long a given page is 
               viewed, and even what notes are written in the "margins."  
               As reading has moved online, it also has become much easier 
               to link books that are browsed or read with a reader's 
               other online activities, such as Internet searches, emails, 
               cloud computing documents, and social networking.  With all 
               of this information, companies can create profiles about 
               individuals, their interests and concerns, and even those 
               of their family and friends.

               This tracking is already occurring. For example, Google 
               Books currently tracks: 1) a reader's initial search query; 
               2) the specific book browsed and page viewed; 3) the 
               date/time of the search or page view; 4) the reader's 
               Internet Protocol address, browser, and computer operating 
               system; and 5) one or more cookies that uniquely identify 
               the reader's browser.  . . .  Amazon can and does track 
               similar information on readers who use its Kindle. As each 
               Kindle is unique and automatically linked to one particular 
               account holder, the potential for tracking specific reading 
               habits may be even greater than with Google Books.  Amazon 
               retains information about the books, magazine 
               subscriptions, newspapers and other digital content on the 
               Kindle and the reader's interaction with that content.  
               This includes an automatic bookmark of the last page read, 
               the content deleted from the device, and any annotations, 
               bookmarks, notes, highlights, or similar markups made by 
               the reader.  The company's control over its users' reading 
               habits extends beyond merely tracking them.  Amazon's 
               ability to control content on the Kindle has allowed it to 
               delete whole books without the account holder's knowledge 
               or consent.  ("Digital Books: A New Chapter for Reader 
               Privacy," ACLU of Northern California, March 2010, p. 7, 
               available online at www.dotrights.org.) 








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          While much of this information may be of more interest to 
          commercial entities (with whom book service providers would be 
          free to share the information under this bill) than it is to the 
          government or private parties whose access to the information 
          would be restricted, it is apparent that these book service 
          providers compile significant amounts of highly personal and 
          sensitive information which may be deserving of protection 
          against inappropriate scrutiny.

           Types of Information Subject to the Bill's Restrictions.   Under 
          this bill, book providers may not knowingly disclose, or be 
          compelled to disclose, a user's "personal information related to 
          the use of a book or part of a book."  The bill defines 
          "personal information" to mean any information described in 
          Civil Code Section 1798.80 and to specifically include a unique 
          identifier or Internet Protocol (IP) address when that 
          identifier or address is being used to identify, relate, 
          describe, or be associated with, a particular individual.  The 
          definition also includes "any information associated with a 
          particular user's access or use of a book service or a book in 
                                                                                whole or partial form."

           This Bill Appears To Be Consistent With Existing Privacy And 
          Free Speech Principles.   Under this bill, a book services 
          provider may not knowingly disclose a user's personal 
          information to any government entity, or be compelled to 
          disclose to any person or entity, except as specified.  

          Expressive materials such as books and other reading materials 
          have long been protected under both state and federal law.  The 
          First Amendment to the U.S. Constitution "protects more than 
          simply the right to speak freely," it includes also the right to 
          distribute and sell expressive materials and the right to 
          receive information and ideas.  (Tattered Cover v. City of 
          Thornton (2002) 44 P. 3d 1044, 1051.)  In United States v. 
          Rumely (1953) 345 U.S. 41, the U.S. Supreme Court held that it 
          was unconstitutional for the government to require a publisher 
          of political books to disclose the names of purchasers of his 
          books, stating, "Ýo]nce the government can demand of a publisher 
          the names of the purchasers of his publications, the free press 
          as we know it disappears.  Then the spectre of a government 
          agent will look over the shoulder of everyone who reads.  The 
          purchase of a book or pamphlet today may result in a subpoena 
          tomorrow.  Fear of criticism goes with every person into the 








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          bookstall."  (Id. at 57.)

          More recently, a federal district court in Wisconsin ruled on a 
          motion to quash a grand jury subpoena that initially sought the 
          identities of thousands of Amazon customers who had purchased 
          books from the target of the grand jury's tax evasion 
          investigation.  Amazon refused to identify any of its customers 
          to the government, arguing that they had a "First Amendment 
          right to maintain the privacy of their reading choices."  (In re 
          Grand Jury Subpoena to Amazon.com (2007) 246 F.R.D. 570, 572.)  
          The court agreed, noting "it is an unsettling and un-American 
          scenario to envision federal agents nosing through the reading 
          lists of law-abiding citizens while hunting for evidence against 
          somebody else.  . . .   if word were to spread across the 
          Net-and it would-that the FBI and the IRS had demanded and 
          received Amazon's list of customers and their personal 
          purchases, the chilling effect on expressive e-commerce would 
          frost keyboards across America."  (Id. at 573.)

          As the author notes, California's Constitution contains 
          important privacy safeguards for expressive materials, providing 
          that all people have inalienable rights, including the right to 
          pursue and obtain privacy.  (Cal. Const. art. I, sec. 1.)  The 
          state Constitution also 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.)

          As expressive materials move towards the digital age and e-books 
          increase in popularity, these privacy safeguards may be 
          challenged.  As described in more detail below, many provisions 
          contained in this bill appear to be based on case law and 
          California's constitutional privacy protections, although 
          constitutional and other protections may be broader.

           Prohibition Against Knowing Disclosure To Government Entities 
          Without Court Order, Subject to Exceptions.   This bill would 
          generally prohibit a book provider from knowingly disclosing a 
          user's personal information to any government entity.  The 
          intent of this provision is to restrict book providers from 
          disclosing a user's personal information simply upon the request 
          of law enforcement or other government entities without a court 
          order.  With respect to criminal prosecutors, the court's 
          inquiry would include an assessment of probable cause and 








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          grounds for a search warrant (although not a warrant itself), 
          compelling interest, no less intrusive means, notice and an 
          opportunity for the provider to appear and contest the request, 
          and notice to the user (unless there is good reason to delay 
          that notice).  For governmental entities other than criminal 
          prosecutors, there would be no requirement of probable cause. 

          Notwithstanding these general rules, a provider may disclose a 
          user's personal information 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 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.  In 
          addition, a provider may disclose personal information of a user 
          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.  
           
          The bill also permits the disclosure of personal information 
          about a book service user to the government - or to any private 
          person - with the informed, affirmative consent of that user.  

           This Bill Also Does Not Limit Government Access to Reader 
          Information From Sources Other Than a Book Provider.   The 
          prohibition against knowing disclosure of reader information to 
          the government without a court order applies only to providers 
          of book services.  Under the bill, a provider is defined as a 
          commercial entity offering a book service to the public.  "Book 
          service" is defined to mean a service that, as its primary 
          purpose, provides the rental, purchase, borrowing, browsing, or 
          viewing of books.  Thus, entities that do not fall within these 
          definitions are not subject to the bill's requirement that a 
          court order be obtained.  

          Protection for Book Providers Against Compelled Disclosure By 
          Private and Government Entities Absent Court Approval.   The bill 
          also provides guidelines to courts when private parties seek to 
          compel book providers to release user information in a pending 
          court proceeding.  Recognizing the governmental entities may 
          also be parties in these proceedings, the restrictions on 
          compelled disclosure apply to government entities as well.  With 








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          respect to efforts to compel the release of book user 
          information, the bill adopts the same standards as the "civil" 
          provision described above: compelling interest, no less 
          intrusive means, notice and an opportunity for the provider to 
          appear and contest the request, and notice to the user.  As 
          above, no court order would be required to disclose information 
          to a government entity where there is an imminent danger of 
          death or serious physical injury requiring the immediate 
          disclosure of the requested personal information and 
          insufficient time to obtain a court order, or where 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.  
            
          This Bill Does Not Limit The Ability Of Book Providers To 
          Voluntarily Share A Consumer Or Other User's Personal 
          Information With Private Entities For Commercial Or Other 
          Purposes.   The bill's prohibition against knowing disclosure to 
          the government does not apply to any private person or entity.  
          As a result, the bill would not restrict book providers to 
          knowingly disclose a user's personal information to any other 
          person or entity, including, potentially, third party marketers. 
           To the extent the entities that receive this information are 
          not themselves book providers, they are not subject to the 
          bill's requirements, although other privacy laws may govern 
          their receipt, use, or disclosure of this information.

           Penalty Provisions And Defense for Reasonable Reliance.   This 
          bill would make it a violation of law for a provider to 
          knowingly provide a book user's personal information to a 
          government entity, 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.  In addition, a book service provider who 
          knowingly provides a user's personal information to a government 
          entity in violation of the bill would 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.  

          The bill provides that an objectively reasonable reliance by a 
          book service provider on an order for the release of a user's 
          personal information, or on any of the bill's exceptions to 
          confidentiality, is a complete defense to any civil, 
          administrative, or criminal action.








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          Concerns of District Attorneys Association.   The California 
          District Attorneys Association opposes the bill in its last 
          amended version.  The CDAA argues first that the federal Privacy 
          Protection Act prohibits certain searches that are not 
          prohibited by the bill.  CDAA explains:

               Our opposition to this bill stems mainly from the fact that 
               it potentially conflicts with and/or exceeds the 
               requirements of existing federal law. The Personal Privacy 
               Act (42 USC 2000aa et seq.) prohibits the use of search 
               warrants to gather information from newsrooms and 
               disseminators of books and other publications. Previous 
               iterations of SB 602 clashed with federal law because it 
               purported to authorize search warrants for commercial 
               providers of book services, albeit subject to strenuous 
               conditions. 

          To respond to this concern the author's proposed amendments 
          state explicitly that nothing in the act conflicts with the 
          federal Privacy Protection Act, 42 USC 2000aa.

          The other concern of the CDAA is with respect to certain types 
          of criminal matters that are exempted from the prohibitions of 
          the Privacy Protection Act.  CDAA states:

               And though federal law generally precludes the use of 
               search warrants when seeking information from the press and 
               book distributors, it wisely includes exceptions from this 
               prohibition in situations involving child pornography, 
               sexual exploitation of children, and the sale of children. 
               SB 602 contains no similar exceptions for the burdensome 
               processes it contemplates. It should pose no difficulty for 
               a publisher of pornography to present his wares in a manner 
               meeting the definition of "book" used in SB 602. The 
               government would have difficulty obtaining such materials 
               without jumping through all the hoops included in the bill, 
               including giving a suspect an opportunity for notice and a 
               hearing before we seize the evidence.

          In response to this concern, the author's proposed amendments 
          clarify that the bill matches the exemptions in federal law by 
          stating expressly that it does not make it unlawful for a law 
          enforcement entity subject to 42 U.S.C. section 2000aa to obtain 
          a search warrant for a user's personal information with regard 








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          to the specified offenses.

          CDAA also expressed concern that the provision of the bill 
          relating to the admissibility of evidence conflicted with 
          existing law regarding criminal prosecutions.  Specifically, 
          CDAA states: 

               Finally, federal statute provides that evidence seized in 
               violation of the statute may still be admissible in a 
               criminal prosecution, apparently out of deference to the 
               U.S. Supreme Court as the final arbiter of when evidence 
               should be suppressed. SB 602 takes the opposite approach 
               and makes inadmissible evidence obtained in violation of 
               its terms. The California Constitution's truth-in-evidence 
               provision added by Proposition 8 from 1982 prevents SB 
               602's rule from having any effect and it should therefore 
               be removed. 

          This issue has also been addressed in the author's proposed 
          amendments.

           Author's Narrowing And Clarifying Amendments.   In response to 
          concerns expressed by opponents and to otherwise narrow and 
          clarify the bill, the author prudently proposes to amend the 
          bill as reflected in the attached mockup.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Civil Liberties Union (co-sponsor)
          Electronic Frontier Foundation (co-sponsor)
          Alibris
          Californians Aware
          California Library Association
          Center for Democracy and Technology
          Consumer Federation of California
          GoodReads
          Google, Inc.
          Monsoon Commerce Solutions
          Privacy Activism
          Privacy Rights Clearinghouse
          one individual
           
            Opposition (prior to proposed amendments)








                                                                 SB 602
                                                                  Page  16

          
          California Correctional Supervisors Organization
          California District Attorneys Association 

           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334