BILL ANALYSIS Ó
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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