BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 602|
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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
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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.)
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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.)
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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
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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.
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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.
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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
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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:
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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
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