Amended in Senate April 1, 2013

Senate Bill No. 467

Introduced by Senator Leno

February 21, 2013

An act begin insert to amend Section 1524.2 of, and to add Sections 1524.4, 1524.5, 1524.6, and 1524.7 to, the Penal Code, end insert relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

SB 467, as amended, Leno. Privacy: electronic communications: warrant.

Existing law authorizes a court or magistrate to issue a warrant for the search of a place and the seizure of property or things identified in the warrant where there is probable cause to believe that specified grounds exist. Existing law also provides for a warrant procedure for the acquisition of stored communications begin insert and other identifying information end insert in the possession of a begin insert foreign corporation that is a end insert provider of electronic communication begin delete service end delete begin insert services end insert or remote computing begin delete service end delete begin insert services to the general public, and procedures for a California corporation that provides electronic communication services or remote computing services to the general public when served with a warrant issued by a court in another state end insert .

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This bill would declare the intent of the Legislature to enact legislation prohibiting a government entity from obtaining the contents of a wire or electronic communication from a provider of electronic communication service or remote computing service that is stored, held, or maintained by that service without a valid search warrant.

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This bill would delete the warrant requirement that the providers of electronic communication services or remote computing services be providing those services to the general public.

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This bill would prohibit a governmental entity, as defined, from obtaining the contents of a wire or electronic communication from a provider of electronic communication services or remote computing services that is stored, held, or maintained by that service provider without a valid search warrant issued by a duly authorized magistrate, with jurisdiction over the offense under investigation, using established warrant procedures. The bill would require, within 3 days after a governmental entity receives those contents from a service provider pursuant to the warrant, the governmental entity to serve upon or deliver to the subscriber, customer, or user a copy of the warrant and a notice, as specified, including certain information. The bill would authorize a delay in serving the warrant notice, as provided.

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This bill would prohibit, except as provided, a person or entity providing electronic communication services or remote computing services from knowingly divulging to any person or entity the contents of a wire or electronic communication that is stored, held, or maintained by that service provider.

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Any knowing or intentional violation of these provisions, except as provided, would be subject to a civil action with appropriate relief, including, but not limited to, actual damages of not less than $1,000, possible punitive damages, attorney’s fees, and court costs.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 1524.2 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

1524.2.  

(a) As used in this section, the following terms have
the following meanings:

(1) The terms “electronic communication services” and “remote
computing services” shall be construed in accordance with the
Electronic Communications Privacy Act in Chapter 121
(commencing with Section 2701) of Part I of Title 18 of the United
State Code Annotated. begin delete This section shall not apply to corporations
that do not provide those services to the general public. end delete

(2) An “adverse result” occurs when notification of the existence
of a search warrant results in:

(A) Danger to the life or physical safety of an individual.

(B) A flight from prosecution.

(C) The destruction of or tampering with evidence.

(D) The intimidation of potential witnesses.

(E) Serious jeopardy to an investigation or undue delay of a
trial.

(3) “Applicant” refers to the peace officer to whom a search
warrant is issued pursuant to subdivision (a) of Section 1528.

(4) “California corporation” refers to any corporation or other
entity that is subject to Section 102 of the Corporations Code,
excluding foreign corporations.

(5) “Foreign corporation” refers to any corporation that is
qualified to do business in this state pursuant to Section 2105 of
the Corporations Code.

(6) “Properly served” means that a search warrant has been
delivered by hand, or in a manner reasonably allowing for proof
of delivery if delivered by United States mail, overnight delivery
service, or facsimile to a person or entity listed in Section 2110 of
the Corporations Code.

(b) The following provisions shall apply to any search warrant
issued pursuant to this chapter allowing a search for records that
are in the actual or constructive possession of a foreign corporation
that provides electronic communication services or remote
computing services begin delete to the general public end delete , where those records
would reveal the identity of the customers using those services,
data stored by, or on behalf of, the customer, the customer’s usage
of those services, the recipient or destination of communications
sent to or from those customers, or the content of those
communications.

(1) When properly served with a search warrant issued by the
California court, a foreign corporation subject to this section shall
provide to the applicant, all records sought pursuant to that warrant
within five business days of receipt, including those records
maintained or located outside this state.

(2) Where the applicant makes a showing and the magistrate
finds that failure to produce records within less than five business
days would cause an adverse result, the warrant may require
production of records within less than five business days. A court
may reasonably extend the time required for production of the
records upon finding that the foreign corporation has shown good
cause for that extension and that an extension of time would not
cause an adverse result.

(3) A foreign corporation seeking to quash the warrant must
seek relief from the court that issued the warrant within the time
required for production of records pursuant to this section. The
issuing court shall hear and decide that motion no later than five
court days after the motion is filed.

(4) The foreign corporation shall verify the authenticity of
records that it produces by providing an affidavit that complies
with the requirements set forth in Section 1561 of the Evidence
Code. Those records shall be admissible in evidence as set forth
in Section 1562 of the Evidence Code.

(c) A California corporation that provides electronic
communication services or remote computing services begin delete to the
general public end delete , when served with a warrant issued by another state
to produce records that would reveal the identity of the customers
using those services, data stored by, or on behalf of, the customer,
the customer’s usage of those services, the recipient or destination
of communications sent to or from those customers, or the content
of those communications, shall produce those records as if that
warrant had been issued by a California court.

(d) No cause of action shall lie against any foreign or California
corporation subject to this section, its officers, employees, agents,
or other specified persons for providing records, information,
facilities, or assistance in accordance with the terms of a warrant
issued pursuant to this chapter.

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begin insert SEC. 2. end insert   

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begin insert Section 1524.4 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 1524.4. end insert   

(a) A governmental entity shall not obtain from a
provider of electronic communication services or remote computing
services the contents of a wire or electronic communication that
is stored, held, or maintained by that service provider without a
valid search warrant issued by a duly authorized magistrate, with
jurisdiction over the offense under investigation, using procedures
established pursuant to this chapter.

(b) Within three days after a governmental entity receives those
contents from a service provider, the governmental entity shall
serve upon, or deliver by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective as
specified by the court issuing the warrant, to the subscriber,
customer, or user a copy of the warrant and a notice that includes
the information specified in paragraph (1) of and subparagraph
(A) of paragraph (2) of subdivision (c) of Section 1524.5, except
that delayed notice may be given pursuant to Section 1524.5.

(c) For purposes of this chapter, “governmental entity” means
a department or agency of the state or any political subdivision
thereof, or an individual acting for or on behalf of the state or any
political subdivision thereof.

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begin insert SEC. 3. end insert   

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begin insert Section 1524.5 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 1524.5. end insert   

(a) (1) A governmental entity acting under Section
1524.2 may, when a search warrant is sought, include in the
application a request, supported by sworn affidavit, for an order
delaying the warrant notification required under subdivision (b)
of Section 1524.4.

(2) The court shall grant the request if the court determines that
there is reason to believe that notification of the existence of the
warrant may have an adverse result as defined in paragraph (2)
of subdivision (a) of Section1524.2, but only for the period of time
that the court finds there is reason to believe that the warrant
notification may have that adverse result, and in no event shall
the period of time for the delay exceed 90 days.

(b) The court may grant extensions of the delay of the warrant
notification, provided for in subdivision (b) of Section 1524.4, of
up to 90 days each on the same grounds as provided in subdivision
(a).

(c) Upon expiration of the period of delay of the warrant
notification under subdivision (a) or (b), the governmental entity
shall serve upon, or deliver by registered or first-class mail,
electronic mail, or other means reasonably calculated to be
effective as specified by the court issuing the warrant, the customer,
user, or subscriber a copy of the warrant together with a notice
that does both of the following:

(1) States with reasonable specificity the nature of the
governmental inquiry.

(2) Informs the customer, user, or subscriber all of the following:

(A) That information maintained for the customer or subscriber
by the service provider named in the process or request was
supplied to, or requested by, that governmental entity and the date
on which the supplying or request took place.

(B) That warrant notification to the customer or subscriber was
delayed.

(C) The grounds for the court’s determination to grant the delay.

(D) Which provisions of this chapter authorized the delay.

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begin insert SEC. 4. end insert   

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begin insert Section 1524.6 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 1524.6. end insert   

(a) Except as provided in subdivision (b), a person or
entity providing an electronic communication service or remote
computing service shall not knowingly divulge to any person or
entity the contents of a wire or electronic communication that is
stored, held, or maintained by that service.

(b) A service provider described in subdivision (a) may divulge
the contents of a communication under any of the following
circumstances:

(1) To an addressee or intended recipient of the communication
or an agent of the addressee or intended recipient.

(2) As otherwise authorized in Section 1524.2.

(3) With the lawful consent of the originator, an addressee, or
intended recipient of the communication, or the subscriber in the
case of remote computing service.

(4) To a person employed or authorized or whose facilities are
used to forward the communication to its destination.

(5) As may be necessary incident to the rendition of the service
or to the protection of the rights or property of the provider of that
service.

(6) To a law enforcement agency if the contents were
inadvertently obtained by the service provider and appear to
pertain to the commission of a crime.

(7) To a governmental entity, if the provider, in good faith,
believes that an emergency involving the danger of death or serious
physical injury to any person requires disclosure without delay of
communications relating to the emergency.

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begin insert SEC. 5. end insert   

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begin insert Section 1524.7 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 1524.7. end insert   

(a) Except as provided in subdivision (d) of Section
1524.2, any provider of electronic communication service or
remote computing service, subscriber, or other person aggrieved
by any knowing or intentional violation of this chapter may, in a
civil action, recover from the person, entity, or governmental entity
that committed the violation, relief as may be appropriate.

(b) In a civil action under this section, appropriate relief
includes, but is not limited to, all of the following:

(1) Preliminary and other equitable or declaratory relief.

(2) Damages under subdivision (c).

(3) Reasonable attorney’s fees and other litigation costs
reasonably incurred.

(c) (1) The court may assess as damages, in a civil action, the
sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation, but in no case
shall a person be entitled to recover less than the sum of one
thousand dollars ($1,000).

(2)  If the violation is willful or intentional, the court may assess
punitive damages.

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SECTION 1.  

It is the intent of the Legislature to enact
legislation prohibiting a government entity from obtaining the
contents of a wire or electronic communication from a provider
of electronic communication service or remote computing service
that is stored, held, or maintained by that service without a valid
search warrant.

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