BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 844        Hearing Date:    June 9, 2015    
          
           ----------------------------------------------------------------- 
          |Author:    |Bloom                                                |
          |-----------+-----------------------------------------------------|
          |Version:   |February 26, 2015                                    |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |No               |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|MK                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


            Subject:  Search Warrants:  Foreign Corporations and Foreign  
 
                             Limited Liability Companies



          HISTORY

          Source:   Los Angeles District Attorney's Office

          Prior Legislation:SB 1980 (McPherson) Ch. 864, Statutes of 2002 
                         SB 662 (Figueroa) Ch. 896, Statutes of 1999 

          Support:  California Bankers Association; California District  
                    Attorneys Association; California State Sheriffs'  
                    Association

          Opposition:None known

          Assembly Floor Vote:                 77 - 0


          PURPOSE

          The purpose of this bill is to authorize a foreign corporation  
          and foreign limited liability company to consent to service of  
          process for a search warrant by email or submission to a  
          designated Internet Web portal.
          








          AB 844  (Bloom )                                          PageB  
          of?
          
          Existing law requires when properly served with a search warrant  
          issued by the California court, a foreign corporation subject to  
          this section to 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. (Penal Code, § 1524.2, subd. (b)(1).) 


          Existing law 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. (Penal Code, § 1523.) 


          Existing law states that a California corporation that provides  
          electronic communication services or remote computing services  
          to the general public, 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. (Penal Code, § 1524.2, subd. (c).) 


          Existing law provides that the terms "electronic communication  
          services" and "remote computing services" shall be construed in  
          accordance with applicable federal law. (Penal Code, § 1524.2,  
          subd. (a)(1).) 


          Existing law defines "properly served" as 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.  
          (Penal Code, § 1524.2, subd. (a)(6).) 


          Existing law states that a provider of wire or electronic  
          communication services or a remote computing service, upon the  
          request of a peace officer, shall take all necessary steps to  









          AB 844  (Bloom )                                          PageC  
          of?
          
          preserve records and other evidence in its possession pending  
          the issuance of a search warrant or a request in writing and an  
          affidavit declaring an intent to file a warrant to the provider.  
          Records shall be retained for a period of 90 days which shall be  
          extended for an additional 90-day upon a renewed request by the  
          peace officer. (Penal Code, § 1524.3, subd. (d).) 

          Existing law requires any domestic or foreign corporation,  
          before it may be designated as the agent for the purpose of  
          service of process of any entity, to file a certificate executed  
          in the name of the corporation by an officer thereof stating all  
          of the following: 

                 The complete street address of its office or offices in  
               this state, wherein any entity designating it as such agent  
               may be served with process; 

                 The name of each person employed by it at each such  
               office to whom it authorizes the delivery of a copy of any  
               such process; and

                 Its consent that delivery thereof to any such person at  
               the office where the person is employed shall constitute  
               delivery of any such copy to it, as such agent.  
               (Corporations Code, § 1505.) 

          Existing law provides that delivery by hand of a copy of any  
          process against the corporation (a) to any natural person  
          designated by it as agent or (b), if a corporate agent has been  
          designated, to any person named in the latest certificate of the  
          corporate agent filed with the Secretary of State at the office  
          of such corporate agent shall constitute valid service on the  
          corporation. (Corporations Code, § 1701.) 

          Existing law prohibits a foreign corporation from transacting  
          intrastate business without having first obtained from the  
          Secretary of State a certificate of qualification. To obtain  
          that certificate it shall file, on a form prescribed by the  
          Secretary of State, a statement and designation signed by a  
          corporate officer or, in the case of a foreign association that  
          has no officers, signed by a trustee stating: 
                 Its name and the state or place of its incorporation or  
               organization; 
                 The street address of its principal executive office; 









          AB 844  (Bloom )                                          PageD  
          of?
          
                 The street address of its principal office within this  
               state, if any; 
                 The mailing address of its principal executive office,  
               if different from the addresses specified above; 
                 The name of an agent upon whom process directed to the  
               corporation may be served within this state, as specified; 
                 Its irrevocable consent to service of process directed  
               to it upon the agent designated and to service of process  
               on the Secretary of State if the agent so designated or the  
               agent's successor is no longer authorized to act or cannot  
               be found at the address given; and 
                 If it is a corporation which will be subject to the  
               Insurance Code as an insurer, it shall so state that fact.  
               (Corp. Code, § 2105, subd. (a).) 

          Existing law specifies that consent extends to service of  
          process directed to the foreign corporation's agent in  
          California for a search warrant issued pursuant to Section  
          1524.2 of the Penal Code, or for any other validly issued and  
          properly served search warrant, for records or documents that  
          are in the possession of the foreign corporation and are located  
          inside or outside of this state.  This subparagraph shall apply  
          to a foreign corporation that is a party or a nonparty to the  
          matter for which the search warrant is sought.  For purposes of  
          this subparagraph, "properly served" means 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 as specified.  
          (Corporations Code, § 2105, subd. (a)(6)(B).) 

          Existing law states that delivery by hand of a copy of any  
          process against a foreign corporation (a) to any officer of the  
          corporation or its general manager in this state, or if the  
          corporation is a bank to a cashier or an assistant cashier, (b)  
          to any natural person designated by it as agent for the service  
          of process, or (c), if the corporation has designated a  
          corporate agent, to any person named in the latest certificate  
          of the corporate agent filed with the Secretary of State shall  
          constitute valid service on the corporation. (Corporations Code,  
          § 2110.) 


          Existing law provides that a foreign limited liability company  
          may apply for a certificate of registration to transact business  









          AB 844  (Bloom )                                          PageE  
          of?
          
          in this state by delivering an application to the Secretary of  
          State for filing on a form prescribed by the Secretary of State.  
          The application shall state all of the following: 

                 The name of the foreign limited liability company, or an  
               alternate name, as specified; 

                 The state or other jurisdiction under whose law the  
               foreign limited liability company is organized and the date  
               of its organization in that state or other jurisdiction,  
               and a statement that the foreign limited liability company  
               is authorized to exercise its powers and privileges in that  
               state or other jurisdiction; 

                 The street address of the foreign limited liability  
               company's principal office and of its principal business  
               office in this state, if any; 

                 The name and street address of the foreign limited  
               liability company's initial agent for service of process in  
               this state who meets the qualifications specified. If a  
               corporate agent is designated, only the name of the agent  
               shall be set forth; 

                 A statement that the Secretary of State is appointed the  
               agent of the foreign limited liability company for service  
               of process if the agent has resigned and has not been  
               replaced or if the agent cannot be found or served with the  
               exercise of reasonable diligence; and 


                 The mailing address of the foreign limited liability  
               company if different than the street address of the  
               principal office, or principal business office in this  
               state. (Corp. Code, § 17708.02, subd. (a).) 

          Existing federal law, the Stored Communications Act regulates  
          access to electronic communications from providers of electronic  
          communications services. Under the Act a person is prohibited  
          from (1) intentionally accessing without authorization a  
          facility through which an electronic communication service is  
          provided; or (2) intentionally exceeding an authorization to  
          access that facility; and thereby obtaining, altering or  
          preventing the authorized access to a wire or electronic  









          AB 844  (Bloom )                                          PageF  
          of?
          
          communication while in electronic storage in such a system. The  
          Act requires governmental entities to obtain a warrant prior to  
          requiring a provider of electronic communication service or  
          remote computing service to disclose a record or other  
          information pertaining to a subscriber to or customer of such  
          service. (18 U.S.C. § 2701 et seq.)

          This bill would allow a foreign corporation or foreign limited  
          liability company to consent to service of process for a search  
          warrant by email or submission to a designated Internet Web  
          portal.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  









          AB 844  (Bloom )                                          PageG  
          of?
          
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Bill

          According to the author:

                      AB 844 would amend the definition of "properly  
                 served" in PC§1524.2(a)(6) to reflect the common and  
                 increasingly prevalent practice of communications  
                 and computing service companies to insist on  
                 electronic service of process.  Such policies may  
                 request that service be by email, or via a web  
                 portal provided by the company.

          2.  Service of Process

          Existing law requires both a domestic and foreign corporation to  
          designate an agent for the purpose of service of process when  
          the corporation files a certificate in the office of the  









          AB 844  (Bloom )                                          PageH  
          of?
          
          Secretary of State to transact business in California.  
          (Corporations Code, §§ 1505 and 2105.) An agent for service of  
          process is an individual who resides in the state, or a  
          corporation, designated to accept court documents if the  
          business entity is sued. Designating a person or an entity to  
          receive service of process ensures that the corporation has  
          formal notice of a law suit and any related court documents. The  
          designated agent for service of process is also the entity upon  
          whom a search warrant would be served for records or documents  
          that are in the possession of the foreign corporation. In order  
          to be "properly served," the applicable statutes require the  
          court documents to be "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 as specified." (Pen. Code, § 1524.2,  
          subd. (a)(6); Corp. Code, § 2105, subd. (a)(6)(B).)

          This bill adds other means of notice as specified by the foreign  
          corporation or the foreign limited liability company, including  
          email or submission via an Internet web portal designated by the  
          corporation for the purpose of service of process. 

          3.  Support
          
          According to the sponsor, the Los Angeles County District  
          Attorney's Office:

               Evidence such as text messages, email, mobile app  
               data, IP logs, photos and documents stored in the  
               cloud, and countless other kinds of electronically  
               stored information have become vital sources of  
               evidence for criminal prosecutions.  This evidence is  
               in the hands of third party companies that are often  
               located outside of California.  Fortunately, there are  
               state and federal laws that work in tandem to give us  
               authority not only to obtain this evidence but also to  
               admit in it court expediently.  Unfortunately,  
               however, the enabling state statute has not kept up  
               with new methods for service of process.  The  
               California law does not explicitly recognize  
               electronic service of process other than by facsimile.

               Federal law governs the collection of electronic  










          AB 844  (Bloom )                                          PageI  
          of?
          
               communications<1> from providers of electronic  
               communications services (ECS) and remote computing  
               services (RCS). The Stored Communications Act governs  
               the collection of such evidence when it is in storage  
               (i.e., in situations other than a wiretap)<2>.  The  
               SCA requires covered entities to honor government  
               requests to preserve and turn over information about  
               subscribers and their transactions and stored  
               communications.<3> The SCA requires that a covered  
               entity honor a properly issued search warrant from any  
               state court of "general criminal jurisdiction"  
               "authorized by the law of that State to issue search  
               warrants".<4>  

               California has a complementary statute governing the  
               collection of such evidence from remote computing and  
               electronic communications services.  Cal. Pen. Code  §  
               1524.2 requires that California corporations and  
               foreign corporations qualified to business in our  
               state honor search warrants for information about  
               subscribers and their transactions and stored  
               communications, wherever those records are stored.<5>   
               For good measure, Cal. Corp. Code § 2105 specifically  
               ----------------------

          <1>  ECPA broadened the definition of "electronic  
          communications" to include just about any electronically stored  
          information, with a few exceptions.  18 U.S. Code § 2510(12)  
          "electronic communication" means any transfer of signs, signals,  
          writing, images, sounds, data, or intelligence of any nature  
          transmitted in whole or in part by a wire, radio,  
          electromagnetic, photoelectronic or photooptical system that  
          affects interstate or foreign commerce, but does not include  
          [voice, tone-only pagers, tracking devices, electronic funds  
          transfers].


          <2> 18 U.S. Code § 2703

          <3> 18 U.S. Code § 2703(a), 18 U.S. Code § 2703(d)

          <4> 18 U.S. Code § 2711(3)(B)

          <5> Cal. Pen. Code § 1524.2.  Cal. Corp. Code § 102.  Cal. Corp.  
          Code § 2105.








          AB 844  (Bloom )                                          PageJ  
          of?
          
               requires foreign corporations to consent to service  
               pursuant to PC§1524.2.  

               A problem is that the statute's definition of  
               "properly served" is out-of-date.  The following forms  
               of service are permitted: "delivered by hand, or in a  
               manner reasonably allowing for proof of delivery if  
               delivered by United States mail, overnight delivery  
               service, or facsimile?"<6>  It is becoming  
               increasingly common for ISP's and others to insist on  
               electronic service, either by email or via a web  
               portal established for this purpose.<7>  

                  The proposed legislation would update the  
               definition of "properly served" to comport with  
               today's technological innovations and modern business  
               practices.

                                         --END --


          








          ---------------------------
          <6> PC§1524.2(a)(6)

          <7> Facebook and Ebay/PayPal are two companies that have  
          established web portals for the exclusive use of law  
          enforcement.  Yahoo!, T-Mobile, Pinger, and CapitalOne are  
          examples of the new norm, which is service by email.