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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