BILL ANALYSIS Ó SB 828 Page 1 Date of Hearing: June 24, 2014 Counsel: Shaun Naidu ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 828 (Lieu, Anderson) - As Amended: May 6, 2014 SUMMARY : Prohibits the state from providing material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a valid warrant that particularly describes the person, place, and thing to be searched or seized; a court order; or in accordance with judicially-recognized exceptions to warrant requirements. EXISTING LAW : 1)Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., 4th Amend.) 2)States that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. (U.S. Const., 10th Amend.) 3)Prohibits a state from making or enforcing any law that abridges the privileges or immunities of U.S. citizens, and prohibits any state from depriving any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const., 14th Amend, § 1.) 4)Provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched SB 828 Page 2 and the persons and things to be seized." (Cal. Const., art. I, § 13.) 5)Defines a "search warrant" as an order in writing in the name of the People, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Pen. Code, § 1523.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "The Fourth Amendment to the United States Constitution states: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' All Americans, including over 38 million Californians, cannot reasonably be considered suspicious simply for making or receiving telephone calls. The NSA's sweeping seizure of Californians' data is an 'unreasonable seizure' by any definition of the term. Recently, a federal judge declared the NSA's blanket phone surveillance program unconstitutional, calling the program 'near Orwellian.' "Over the last seven years, the National Security Agency (NSA) has collected phone record data on every telephone call made or received by every American. Media articles also state the NSA's surveillance program on Americans extends to not just phone records, but also all types of electronic data, including emails, text messages and information stored on Americans' smart phones. "To collect electronic and metadata information, the NSA sometimes relies upon services provided by the state. In order to prevent taxpayers' money from going towards violating their own rights, this bill would ban state agencies from giving any material support, participation or assistance to any federal agency to collect electronic or metadata of any person, unless there has been a warrant issued that specifically describes the person, place and thing to be searched or seized. SB 828 Page 3 "This bill would make it the clear policy of the state to refuse material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a warrant that particularly describes the person, place, and thing to be searched or seized, or in accordance with judicially recognized exceptions to warrant requirements." 2)Government Searches & Seizures : Both the United States and the California constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, § 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Id. at p. 760.) This bill would prohibit the state from assisting a federal agency with collecting electronic data or metadata without a warrant or the consent of the person. As noted in the author's statement, this bill is in response to recent information about the NSA's surveillance program. The intent of this bill is to make it clear that California shall not help the NSA in any illegal or unconstitutional collection of electronic data or metadata. 3)Argument in Support : The Tenth Amendment Center states, "Recent revelations make it clear that the NSA operations violate the Constitution on a daily basis. The Fourth sets up clear parameters for searching and seizing personal information. The founders chafed under general warrants issued by the British government that allowed random searches at the whim of the authorities. The NSA operates in much the same manner, thrusting a dagger into the heart of the Fourth Amendment's intent. SB 828 Page 4 ? "While California cannot bar the NSA from operating within its borders, it does not have to cooperate with or support the agency. The well-established anti-commandeering doctrine, holding that the federal government cannot coerce or compel states to implement or enforce federal regulations or programs, puts SB[]828 on firm legal footing." 4)Argument in Opposition : The California State Sheriffs' Association argues, "Prohibiting the state from aiding and abetting federal activity that would otherwise be illegal or unconstitutional seems unnecessary as we cannot imagine that such behavior is not already proscribed. If the bill's intent is to move beyond what most would agree is existing law, the language regarding electronic data and metadata is unclear as the bill fails to specifically list the activities that are trying to be prevented. ? [] Additionally, it is unclear how the language regarding obtaining a warrant will be reconciled with the language regarding the 'illegal and unconstitutional collection of electronic data and metadata.' We have concerns that this bill could create uncertainty with respect to completely lawful and constitutional investigations involving local agencies and federal partners." 5)Prior Legislation : a) AB 4 (Ammiano), Chapter 570, Statutes of 2013, prohibits a law enforcement official from detaining an individual on the basis of a U.S. Immigration and Customs Enforcement hold after that individual becomes eligible for release, unless the individual has been convicted of or charged with specified crimes. b) AB 351 (Donnelly), Chapter 450, Statutes of 2013, prohibits the state, its political subdivisions, and specified others from knowingly aiding an agency of the U.S. Armed Forces in enforcing specified federal laws if doing so would violate the United States or California constitutions or any state law. REGISTERED SUPPORT / OPPOSITION : Support SB 828 Page 5 Bill of Rights Defense Committee California Attorneys for Criminal Justice Consumer Federation of California Restore the Fourth Los Angeles Tenth Amendment Center Opposition California District Attorneys Association California State Sheriffs' Association Los Angeles County District Attorney's Office Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744