BILL ANALYSIS Ó SCR 54 Page 1 Date of Hearing: August 27, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair SCR 54 (Padilla) - As Introduced: June 24, 2013 PROPOSED CONSENT SENATE VOTE : 38-0 SUBJECT : Government Access to Communication Service Providers KEY ISSUE : Should the California Law Revision Commission make recommendations to the Legislature on revising statutes regulating government access to customer information Held by a communications service provider? FISCAL EFFECT : As currently in print this measure is keyed fiscal. SYNOPSIS This non-controversial resolution requires the California Law Revision Commission (CLRC) to report and make recommendations to the Legislature relating to the statutes that govern local and state agency access to customer information held by a communications service provider. Several existing law provisions distributed throughout the California Code address specific instances in which a state or local agency may request information from a service provider, but according to the author these varied provisions lack clear and consistent standards. The author also contends that these often dated statutory provisions do not always take into account 21st century online and mobile technology. In addition to requiring the CLRC to make recommendations, the resolution also makes declarations relating to the new technologies that allow service providers to collect large amounts of customer information, the increasing number of government requests for such information, the lack of clear and consistent standards relating to such requests, and the need to update and clarify existing law accordingly. There is no known opposition to the measure and it has yet to receive any negative floor or committee votes. SUMMARY : Requires the California Law Revision Commission to report to the Legislature recommendations to revise statutes SCR 54 Page 2 governing state and local agency access to customer information from communications service providers. Specifically, this measure : 1)Makes the following declarations: a) 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. b) Government requests to communications service providers for customer information have increased dramatically in recent years, especially by law enforcement agencies. c) 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. d) 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. 2)Requires the California Law Revision Commission 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: a) Update statutes to reflect 21st Century mobile and Internet-based technologies. b) Protect customers' constitutional rights, including, but not limited to, rights to privacy, free speech, and freedom from unlawful searches and seizures. c) Enable state and local government agencies to protect public safety. SCR 54 Page 3 d) 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. EXISTING LAW : 1)Authorizes the California Law Revision Commission to study topics approved by concurrent resolution of the Legislature. (Government Code Section 8293.) 2)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. (Government Code Section 8288.) COMMENTS : According to a Public Policy Institute of California survey, 92 percent of all Californians have a cell phone, 58 percent have a smartphone, and 86 percent use the Internet at least occasionally. As use of these services increases, law enforcement has correspondingly increased the number of requests for information that it makes to the providers of those services. For example, last year a Congressional inquiry found that law enforcement requests to communication service providers has increased between 12 and 16 percent in each of the last five years. In light of these trends, this resolution would require the California Law Revision Commission (CLRC) to report and make recommendations to the Legislature for revising the statutes that govern local and state agency access to customer information held by a communications service provider. Several existing statutes address specific instances in which a state or local agency may request information from a service provider, but according to the author these varied provisions are scattered throughout different codes and lack clear and consistent standards. In addition, the author contends that existing provisions do not always take into account 21st century online and mobile technology. SCR 54 Page 4 Accordingly, this measure specifies that the purpose of the required CLRC report and recommendations is to accomplish all of the following: (1) update statutes to reflect 21st century mobile and Internet-based technologies; (2) protect customers' constitutional rights, including rights to privacy, free speech, and freedom from unreasonable searches and seizures; (3) enable state and local agencies to protect public safety; and (4) clarify the process that communications providers will be required to follow when responding to a state or local agency request for information. Legislative Counsel's Summary of Relevant Statutory Provisions : In response to a request by the author, Legislative Counsel Bureau (LCB) produced a summary of California statutes that might be relevant to government's authority to access customer information in the possession of a communications service provider, as well as regulations on how that information can be used. LCB's summary found more than thirty potentially relevant code sections in the Code of Civil Procedure, Government Code, Penal Code, Public Utilities Code, and Business and Professions Code. LCB grouped these several code sections into three general categories: (1) codified law that is potentially relevant to government's authority to access information from a communications provider; (2) codified law that is potentially relevant to government's authority to take action on the provision of communications service to a customer; and (3) codified law that is potentially relevant to government's authority to use technology to access personal information. (Ops. Cal. Legis. Counsel, No. 1304153, April 25, 2013.) Specific Provisions in California Code : A few representative examples cited in the LCB summary illustrate the author's concerns. Government Code Section 6254.16 generally exempts a customer's public utility information from disclosure under the California Public Records Act, but requires disclosure of a customer's name, usage, home address, or telephone number in the following situations: to an authorized agent or family member; to an officer or employee of another governmental agency "when necessary for the performance of its official duties;" upon court order or the request of a law enforcement agency "relative to an ongoing investigation;" upon determination by a local agency that a customer has used utility services "in a manner inconsistent with applicable SCR 54 Page 5 local utility usage policies;" or upon determination by the local agency that "the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure." Provisions in the Penal Code, on the other hand, require "a provider of electronic communication service or remote computing service" to disclose a customer's personal information pursuant to a warrant, and it gives the service provider the right to quash or modify the warrant if the information requested is unusually voluminous or if the request would otherwise cause an undue burden on the provider. Provisions of the Code of Civil Procedure establish procedures by which a party or law enforcement agency may subpoena customer records maintained by a telephone company. Provisions of the Public Utilities Code address the disclosure of information held by a public utility, including those that would be deemed a "communications service provider." Section 2891 of the Public Utilities Code generally prohibits a telephone or telegraph corporation from disclosing a subscriber's personal information without the written consent of the subscriber. However, notwithstanding Section 2891, Section 2894 provides a complete defense against any civil action to any provider that discloses information "in good faith reliance" on any warrant, court order, or subpoena, or that discloses information at the request of a law enforcement agency for "law enforcement purposes." The LCB summary includes many other examples that could be recited. However, the representative examples noted above appear to adequately support the author's contention that existing law includes an array of restrictions, authorizations, and exemptions thereto. Thus CLRC recommendations that would clarify and update these provisions may well be in order. ARGUMENTS IN SUPPORT : According to the author, "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 and lack consistent and clear definitions for what is required when a service provider gets a request for information." The author SCR 54 Page 6 believes that, in addition to the need for greater coherence and consistency, the statutes should be updated to reflect "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." REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition None on file Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334