BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SCR 54 (Padilla)
As Introduced
Hearing Date: July 2, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
California Law Revision Commission: Referral for Study
DESCRIPTION
This measure would require the California Law Revision
Commission (CLRC) to report to the Legislature recommendations
to revise statutes governing access by state and local
government agencies to customer information from communications
service providers (i.e., telephone, DSL, broadband companies).
BACKGROUND
The California Law Revision Commission (CLRC) was created in
1953 and tasked with the responsibility for a continuing
substantive review of California statutory and decisional law.
The CLRC studies the law in order to discover defects and make
related recommendations to the Legislature for needed reforms.
The CLRC's enabling statute recognizes two types of topics the
CLRC is authorized to study: (1) those that the CLRC identifies
for study and lists in the Calendar of Topics that it reports to
the Legislature; and (2) those that the Legislature assigns to
the CLRC directly, by statute or concurrent resolution. In the
past, the bulk of the CLRC's study topics have come through the
first route - matters identified by the CLRC and approved by the
Legislature. Once the CLRC identifies a topic for study, it
cannot begin to work on the topic until the Legislature, by
concurrent resolution, authorizes the CLRC to conduct the study.
Direct legislative assignments have become much more common in
recent years, and many of the CLRC's recent studies were
directly assigned by the Legislature.
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This measure would require the California Law Revision
Commission (CLRC) to report to the Legislature recommendations
to revise statutes governing access by state and local
government agencies to customer information from communications
service providers.
CHANGES TO EXISTING LAW
Existing law authorizes the California Law Revision Commission
to study topics approved by concurrent resolution of the
Legislature. (Gov. Code Sec. 8293.)
Existing law prohibits an employee or member of the CLRC, with
respect to any proposed legislation concerning matters assigned
to the commission for study, advocate for the passage or defeat
of the legislation by the Legislature or the approval or veto of
the legislation by the Governor or appear before any committee
of the Legislature unless requested to do so by the committee or
its chairperson. (Gov. Code Sec. 8288.)
This measure would require the California Law Revision
Commission (CLRC) to report to the Legislature recommendations
to revise statutes governing access by state and local
government agencies to customer information from communications
service providers in order to do all of the following:
update statutes to reflect 21st Century mobile and
Internet-based technologies;
protect customers' constitutional rights, including, but not
limited to, the rights of privacy and free speech, and the
freedom from unlawful searches and seizures;
enable state and local government agencies to protect public
safety; and
clarify the process communications service providers are
required to follow in response to requests from state and
local agencies for customer information or in order to take
action that would affect a customer's service, with a specific
description of whether a subpoena, warrant, court order, or
other process or documentation is required.
This measure would make the following legislative statements:
widespread use of 21st Century mobile and Internet-based
communications technologies and services enable service
providers to monitor, collect, and retain large quantities of
information regarding customers, including when and with whom
a customer communicates or transacts business, location data,
and the content of communications;
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government requests to communications service providers for
customer information have increased dramatically in recent
years, especially by law enforcement agencies;
California statutes governing access to customer information
lack clarity and uniform definitions as to the legal standard
for government agencies to obtain customer information from
communications service providers, and many were enacted prior
to the advent of wireless mobile services and the Internet;
and
revising and updating these statutes is necessary to reflect
modern technologies and clarify the rights and
responsibilities of customers, communications service
providers, and government agencies seeking access to customer
information.
COMMENT
1. Stated need for the bill
The author writes:
California statutes governing access by state and local
government agencies to customer information from
communications service providers lack a clear framework and
defined legal standard for when government can obtain customer
information and from whom. These statutes are scattered
throughout the California Code, lack consistent and clear
definitions for what is required when a service provider gets
a request for information. Many of the statutes were enacted
in the era of monopoly landline telephone service do not
reflect the vast amount of information available with modern
technologies from numerous providers.
An update is needed because widespread use of 21st Century
mobile and Internet-based communications technologies and
services enable service providers to monitor, collect and
retain large quantities of information about customers,
including when and with whom a customer communicates or
transacts business, location data, and the content of
communications. Nearly all Californians (92 [percent]) have a
cell phone, 58 percent of them have a smartphone, and nearly
all (86 [percent]) use the Internet at least occasionally,
according to a new survey by the Public Policy Institute of
California released June 26, 2013. As use of these services
increases, so have law enforcement requests to providers for
customer information. A Congressional inquiry last year found
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that requests to service providers from law enforcement
increased between 12 percent and 16 percent in each of the
previous five years. The time is now to update California law
to reflect when and how state and local government can obtain
customer information related to the ever-expanding use of
modern communications services.
2.Increased cellphone data collection by law enforcement and
need to update consumer privacy protections
This Senate Concurrent Resolution seeks to require the
California Law Revision Commission (CLRC) to report to the
Legislature recommendations to revise statutes governing access
by state and local government agencies to customer information
from communications service providers (i.e., telephone, DSL,
broadband companies).
Last year, a Congressional inquiry made by Congressman Ed Markey
(D-Massachusetts), senior member of the United States House of
Representatives Energy and Commerce Committee and Co-Chair of
the Congressional Bi-Partisan Privacy Caucus, found that
requests to telecommunications service providers from law
enforcement officials increased between 12 percent and 16
percent in each of the previous five years. The inquiry also
revealed that federal, state, and local law enforcement made
approximately 1.3 million requests for cell phone records to
wireless carriers in 2011. The information provided by the
wireless carriers to law enforcement included geolocation
information, text message content, wiretaps, and "cell tower
dumps," in which carriers provide all the phone numbers of cell
users that connected with a tower during a discreet period of
time. (See Markey: Law Enforcement Collecting Information on
Millions of Americans from Mobile Phone Carriers (July. 9, 2012)
[as of June 27,
2013].)
Furthermore, a recent New York Times article stated that judges
and lawmakers across the country are now wrangling over whether
and when law enforcement authorities should have access to
consumer cellphone data and how the information may be used as
evidence in criminal cases. (Sengupta, Courts Divided over
Searches of Cellphones (Nov. 25, 2012) N.Y. Times
[as of June 27, 2013].) In California, a January
2013 report of the California Attorney General indicated that
the explosion in use of mobile and Internet-based services
requires new approaches to protect consumers in connection with
service providers' collection, use, and disclosure to third
parties of personal information. (Cal. Atty. Gen., Privacy on
the Go, Recommendations for the Mobile Ecosystem (Jan. 2013)
[as of June 27, 2013] p. i.)
3.Legislative Counsel Bureau Opinion on government access to
private information
According to a Legislative Counsel Bureau opinion issued at the
author's request, there are multiple laws relative to the
government's authority to access information conveyed or
acquired through or related to the use of technology, or to
restrict an individual's use of a communications service. (Ops.
Cal. Legis. Counsel, No. 1304153 (Apr. 25, 2013) p. 1.) That
Opinion noted that the scope of the government's authority is
generally dependent on federal and constitutional law, and
provided examples of codified state law relevant to the
government's authority to access or take action relative to an
individual's communications. (Ibid.)
a. Government's authority to access customer information
from a communications service provider
According to that Opinion, there are numerous provisions of
codified state law that relate to the government's authority
to access customer information from a communications service
provider. Some examples are as follows:
Code of Civil Procedure Section 1985.3 establishes
procedures for a law enforcement agency to subpoena a
consumer's personal records maintained by a telephone
company; this provision requires the consumer's consent to
the release of information.
The California Public Records Act, Government Code Sec.
6250 et seq., generally requires documents maintained by
public agencies to be open for public inspection.
Government Code Section 6254.16 provides an exemption from
public disclosure for information of a public utility
customer unless the information is requested by another
governmental agency or upon a court order or the request of
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a law enforcement agency relative to an ongoing
investigation.
The Penal Code authorizes a government agency to obtain
customer information pursuant to a search warrant, without
notifying the customer. (See Pen. Code Secs. 1473 et seq.,
1524.3, 4576.)
The Public Utilities Code authorizes an employee of a
district attorney office to request and receive from
telephone, gas, and electric public utilities customer
information, as specified, and authorizes release of
customer information to the Public Utilities Commission
without customer consent. (Pub. Util Code Secs. 588,
2891.) (Id. at pp. 1-7.)
a. Government's authority to restrict communications
service to a customer
The Opinion also noted that numerous provisions of state law
relate to the government's authority to restrict
communications service to a customer and provided the
following examples:
Business and Professions Code Section 149 authorizes a
government agency to notify a telephone company to
disconnect service to any customer unlawfully advertising
in a telephone directory.
Penal Code Section 4576 authorizes the Department of
Corrections and Rehabilitation to use available technology
to restrict communications to or from a wireless device
brought by a person, without authorization, within the
secure perimeter of a detention facility.
Public Utilities Code Section 5322 requires the Public
Utilities Commission to disconnect telephone service
provided to an unpermitted household goods carrier (moving
service). (Id. at pp. 7-12.)
a. Government's authority to use technology to access
personal information
The Opinion also identified numerous provisions of state law
relating to the government's authority to use technology to
access an individual's personal information as follows:
Penal Code Section 629.50 et seq. authorizes a law
enforcement agency to intercept wire or electronic cellular
telephone communications related to a crime.
Penal Code Sections 632 and 632.5 authorize a public
utility providing communications services to eavesdrop or
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record a customer's confidential communication without the
consent of all parties, and authorizes a telephonic
communication system within a state, county, city and
county, and city correctional facility to eavesdrop and
record confidential communications.
Penal Code Section 633.8 authorizes a peace officer to
use or authorize the use of an electronic amplifying or
recording device to eavesdrop on or record any oral
communication under specified emergency situations. (Id.
at pp. 12-23.)
1.Report regarding state and local government agency access to
communications service provider customer information
As noted in Comment 3, there are a myriad of state laws relating
to government access to communications customer's information
and restrictions of customer communications. This measure would
require the CLRC to report to the Legislature recommendations to
revise statutes governing access by state and local government
agencies to customer information from communications service
providers (telephone, DSL, broadband companies). The concept
behind this measure is to update the statutes to reflect current
mobile and Internet-based technologies, protect consumer
constitutional rights, including privacy, free speech, and
freedom from unlawful searches and seizures, address appropriate
public safety concerns of state and local government agencies,
and clarify the disclosure process when communications companies
release information to state and local agencies.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 567 (Wagner, Ch. 15, Stats. 2013) repealed the requirement
that the CLRC make the decennial recommendations, and retained
the CLRC's general authority to study, review, and make
recommendations regarding the enforcement of judgments law.
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ACR 98 (Wagner, Res. Ch. 108, Stats. 2012) required the CLRC,
before commencing work on any project within the calendar of
topics the Legislature has authorized or directed the CLRC to
study, to submit a detailed description to legislative members,
as specified, and required the CLRC to provide a copy of a
commission recommendation to each member of a policy committee
that is hearing a bill that would implement the recommendation.
ACR 49 (Evans, Res. Ch. 98, Stats. 2009) required the CLRC,
prior to commencing work on any project within the list of
topics authorized or directed for study by the Legislature, to
submit a detailed description of the scope of work to the Chairs
and Vice Chairs of the Committees on Judiciary of the Senate and
Assembly, and if during the course of the project there is a
major change to the scope of work, submit a description of the
change.
ACR 125 (Papan, Ch. 167, Stats. 2002) authorized the CLRC to
study, report on, and prepare recommended legislation concerning
the issue of financial privacy to address protection and control
of a consumer's personal information and provide both
administrative and civil penalties.
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