BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SCR 54
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          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  








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          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.








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             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.   








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          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  








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          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  








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          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