BILL ANALYSIS Ó
SB 602
Page 1
SENATE THIRD READING
SB 602 (Yee)
As Amended August 23, 2011
Majority vote
SENATE VOTE :40-0
JUDICIARY 8-2 APPROPRIATIONS 17-0
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Fuentes, Harkey, |
| |Dickinson, Huber, | |Blumenfield, Bradford, |
| |Huffman, Monning, | |Charles Calderon, Campos, |
| |Wieckowski | |Davis, Donnelly, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
|-----+--------------------------+-----+--------------------------|
|Nays:|Beth Gaines, Jones | | |
| | | | |
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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 to a law enforcement or non-law
enforcement entity or private person as specified.
2)Requires that a provider, upon the request of a law
enforcement entity, shall take all necessary steps to preserve
records and other evidence in its possession of a user's
personal information related to the use of a book or part of a
book, pending the issuance of a court order or a warrant, and
shall retain the records and evidence for a period of 90 days
from the date of the request by the law enforcement entity,
which shall be extended for an additional 90-day period upon a
renewed request by the law enforcement entity.
3)Provides that a book service provider must disclose the
personal information of a user to any person if the user has
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given his or her informed, affirmative consent to the specific
disclosure for that particular purpose.
4)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
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.
5)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.
6)Provides that the act does not make it unlawful for a law
enforcement entity subject to 42 United States Code (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.
7)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.
8)Provides that, except in an action for a violation of the
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bill's provisions, no evidence obtained in violation of the
bill shall be admissible in any civil, administrative, or
other proceeding.
9)Makes knowing disclosure to governmental entities a violation
of its provisions subject to specified penalties.
10)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.
11)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.
12)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, unless exempted. 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.
13)Provides that nothing in the bill shall otherwise affect the
rights of any person under the California Constitution or any
other law.
FISCAL EFFECT : According to the Assembly Appropriations, minor
cost pressure to the courts from increased caseload. Any
additional court costs would likely be absorbed.
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
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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."
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.
Co-sponsor, American Civil Liberties Union (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."
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, including that
digital book services have the ability to collect and retain
very detailed information about readers. 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.
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." Under this bill, a
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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.) 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. (California Constitution
Article I, Section 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." (California Constitution Article I, Section
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.
This bill would generally prohibit a book provider from
knowingly disclosing a user's personal information to any
government entity. With respect to criminal prosecutors, the
court's inquiry would include an assessment of probable cause
and 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
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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 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.
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.
To respond to concerns by the California District Attorneys
Association (CDAA), the author has taken amendments to state
explicitly that nothing in the act conflicts with the federal
Privacy Protection Act and to 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 to the specified offenses. In
addition, the bill has been amended to address a CDAA concern
that a provision of the bill relating to the admissibility of
evidence conflicted with existing law regarding criminal
prosecutions.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
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