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 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 602 Author: Yee (D) Amended: 8/29/11 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 SENATE FLOOR : 40-0, 05/09/11 AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Dutton, Emmerson, Evans, Fuller, Gaines, Hancock, Harman, Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio, Runner, Simitian, Steinberg, Strickland, Vargas, Walters, Wolk, Wright, Wyland, Yee ASSEMBLY FLOOR : 61-13, 8/31/11 - See last page for vote 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, CONTINUED SB 602 Page 2 purchase, borrowing, browsing, or viewing of books, to the public. Assembly Amendments (1) require a provider to disclose personal information of a user if specified conditions are met, (2) define "law enforcement entity," (3) specify additional requirements for publishing a report for a provider, and (4) correct drafting errors and make other technical and clarifying changes. 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 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.) SB 602 Page 3 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 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.) SB 602 Page 4 This bill 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 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 SB 602 Page 5 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 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. SB 602 Page 6 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 a provider shall disclose personal information of a user to any of the following only if all of the conditions listed below are satisfied: A. A government entity, other than a law enforcement entity, pursuant to a court order issued by a court having jurisdiction over an offense under investigation by that government entity. B. A government entity, other than a law enforcement entity, or a person or private entity pursuant to a court order in a pending action brought by the government entity or by the person or private entity. 1. Provides that a provider shall disclose personal information of a user pursuant to the above provisions only if all of the following conditions are satisfied: A. The court issuing the order finds that the person or entity seeking disclosure has a compelling interest in obtaining the personal information sought. SB 602 Page 7 B. 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. C. Prior to issuance of the court order, the person or entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest the issuance of the court order. D. The provider refrains from disclosing any personal information pursuant to the court order until it provides, in a timely manner, notice 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 minimum of 35 days prior to disclosure of the information within which to appear and quash the order. 1. Provides that nothing in the bill shall otherwise affect the rights of any person under the California Constitution or any other law. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/31/11) American Civil Liberties Union (co-source) Electronic Frontier Foundation (co-source) Alibris CALEGISLATION California Library Association Californians Aware Center for Democracy and Technology City Lights Booksellers and Publishers Consumer Federation of California George Gascon, San Francisco District Attorney Google, Inc. Monsoon Commerce Solutions Pamela Samuelson, Professor of Law- University of California, Berkeley Privacy Activism SB 602 Page 8 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 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: SB 602 Page 9 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. ASSEMBLY FLOOR : 61-13, 8/31/11 AYES: Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes, Galgiani, Gatto, Hagman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning, Nestande, Nielsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Solorio, Swanson, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NOES: Achadjian, Donnelly, Beth Gaines, Garrick, Grove, Halderman, Jones, Knight, Logue, Morrell, Norby, Olsen, Torres NO VOTE RECORDED: Furutani, Gordon, Gorell, Mansoor, Miller, Smyth RJG:nl 8/31/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****