BILL ANALYSIS Ó
AB 1993
Page 1
Date of Hearing: April 5, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1993 (Irwin) - As Amended March 30, 2016
As Proposed to be Amended in Committee
REVISED
SUMMARY: Mandates that specified technology companies specify
law enforcement contacts to coordinate with law enforcement
agency investigations. Specifically, this bill:
1)Specifies that specified technology companies shall file,
within 90 days after the filing of its original articles and
annually thereafter during the applicable filing period, a
statement identifying the corporate "law enforcement
contacts."
a) Specifies notification requirements that the Secretary
of State must follow to inform corporations of their duty
to comply with these procedures; and
b) Provides that annually the Secretary of State shall
transmit to the Attorney General, in the manner prescribed
by the Attorney General, a copy of the current statement
made pursuant to this section for each corporation.
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2)Requires by July 1, 2017, specified technology corporations
shall, at minimum, provide the following through specified law
enforcement contacts:
a) An exclusive process for emergency disclosure requests;
b) Exclusive access and service for law enforcement
personnel;
c) An ability to comply with a law enforcement request for
information regardless of the location of the data;
d) Continual availability of the law enforcement contact;
and
e) The authority to make decisions regarding warrants and
the disclosure of information and data.
EXISTING FEDERAL LAW: 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.; Cal. Const., art. I, § 13.)
EXISTING STATE LAW:
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1)Establishes rules and regulations for corporations to appoint
agents for service of process. Additionally, specifies rules
for when agents for service of process resign and the
designation of a new agent for service of process.
(Corporations Code §§ 1502, 1503 & 1504.)
2)Prohibits exclusion of relevant evidence in a criminal
proceeding on the ground that the evidence was obtained
unlawfully, unless the relevant evidence must be excluded
because it was obtained in violation of the federal
Constitution's Fourth Amendment. (Cal. Const., art. I, §
28(f)(2) (Right to Truth-in-Evidence provision).)
3)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and 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.)
4)Provides the specific grounds upon which a search warrant may
be issued, including when the property or things to be seized
consist of any item or constitute any evidence that tends to
show a felony has been committed, or tends to show that a
particular person has committed a felony. (Pen. Code, §
1524.)
5)Provides that a search warrant cannot be issued but upon
probable cause, supported by affidavit, naming or describing
the person to be searched or searched for, and particularly
describing the property, thing, or things and the place to be
searched. (Pen. Code, § 1525.)
6)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. (Pen. Code, § 1528, subd. (a).)
7)Requires a provider of electronic communication service or
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remote computing service to disclose to a governmental
prosecuting or investigating agency the name, address, local
and long distance telephone toll billing records, telephone
number or other subscriber number or identity, and length of
service of a subscriber to or customer of that service, and
the types of services the subscriber or customer utilized,
when the governmental entity is granted a search warrant.
(Pen. Code, § 1524.3, subd. (a).)
8)States that a governmental entity receiving subscriber records
or information is not required to provide notice to a
subscriber or customer of the warrant. (Pen. Code, § 1524.3,
subd. (b).)
9)Authorizes a court issuing a search warrant, on a motion made
promptly by the service provider, to quash or modify the
warrant if the information or records requested are unusually
voluminous in nature or compliance with the warrant otherwise
would cause an undue burden on the provider. (Pen. Code, §
1524.3(c).)
10)Requires a provider of wire or electronic communication
services or a remote computing service, upon the request of a
peace officer, to take all necessary steps to 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 period upon a renewed
request by the peace officer. (Pen. Code, § 1524.3, subd.
(d).)
11)Specifies that no cause of action shall be brought against
any provider, its officers, employees, or agents for providing
information, facilities, or assistance in good faith
compliance with a search warrant. (Pen. Code, § 1524.3, subd.
(e).)
12)Provides for a process for a search warrant for records that
are in the actual or constructive possession of a foreign
corporation that provides electronic communication services or
remote computing services to the general public, where the
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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 or from those customers, or
the content of those communications. (Pen. Code, § 1524.2.)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "Today most
large tech companies, including telecommunications, internet
search, and social media providers, receive hundreds of
thousands of law enforcement requests for data each year
nationally. These results can be broken down into these
categories: subpoenas, orders, warrants, and emergency
requests.
"These requests are intended to produce evidence or aid in
investigations related to violent crimes, credible threats,
organized crime, terrorist activities, search and rescue
situations- or when law enforcement is trying to find a
missing person, among others.
"Technology companies have begun publishing annual
transparency reports about government data requests and the
company's policies for providing notice when the government
requests and accesses their data, and their process for
screening warrants, orders, and emergency requests before
handing over user content. The reports also provide statistics
detailing how many total requests were received, how many
resulted in data disclosure, and how many were rejected. While
there appears to be some consensus regarding industry best
practices balancing privacy and civil liberties with
stewardship of public safety, the lack of standardization and
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guidelines for such requests is apparent.
"For example, both AT&T and Verizon reported receiving nearly
300,000 law enforcement requests each in 2015. According to
Verizon's transparency report, 'We carefully review each
demand we receive and, where appropriate, we require law
enforcement agencies to narrow the scope of their demands or
correct errors in those demands before we produce some or all
of the information sought.' Each request goes through a
screening process that can take varying amounts of time
depending on the company's internal policies. Industry
averages show that roughly 75% of requests result in some data
being produced. Given the increasing volume of these requests,
and varying company guidelines and internal policies, a level
of standardization and expectation needs to be assured.
"AB 1993 addresses this issue by requiring companies that
generate large amounts of consumer data to standardize their
process for receiving and responding to law enforcement
requests for data to meet industry best practices. AB 1993
will ensure a process for submitting emergency disclosure
requests that is continually available, exclusive to law
enforcement personnel for emergency purposes, that data can be
produced regardless of where it is physically stored, and that
the service provider staff has first-hand decision-making
authority for disclosure of data. AB 1993 will ensure that in
emergency situations the interface between law enforcement and
companies with data relevant to the situation meets minimum
standards of effectiveness."
2)Background: According to the background submitted by the
author, "Existing law authorizes a court to issue a warrant
for seizure of property, inclusive of electronic information,
where probable cause exists. Existing law also provides that a
government entity that obtains electronic information pursuant
to an emergency shall, within three days after obtaining the
information, file for a warrant or order authorizing obtaining
the electronic information or a motion seeking approval of the
emergency disclosures that shall set forth the facts giving
rise to the emergency. Existing law also establishes
procedures for certain California corporations when served
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with a warrant issued by a court in another state.
"With the passage of SB 178 (Leno), also known as CalECPA,
privacy rights were extended to electronic data in a way that
federal law does not: it bars any state law enforcement or
investigative entity from compelling a business to turn over
any data or digital communication-including emails, texts,
documents stored in the cloud-without a warrant. It also
requires a warrant to search or track the location of a
business' electronic devices like mobile phones. Also, no
business (or its officers, employees and agents) may be
subject to any cause of action for providing information or
assistance pursuant to a warrant or court order. CalECPA also
permits a service provider to voluntarily disclose electronic
communication information when disclosure is not otherwise
prohibited by law, such as in emergency situations."
3)Amendments to be Taken in Committee: The amendments that are
being taken today in committee will clarify that companies may
have more than one law enforcement contact, and that existing
law provisions related to responding to warrants will control
procedure. Opponents to the bill have concerns that the bill
would have specified one sole individual as a "law enforcement
contact" and as a result that person would have to be made
available 24 hours a day, every day of the year. Many of
these corporations have entire teams of employees that work
with law enforcement from around the world. By specifying
that there can be multiple contacts, the amendments will
hopefully resolve that concern. Additionally, the amendments
allow existing case law and statutory framework for responding
to warrants issued by law enforcement to control. A mountain
of existing law exists in this area and it is best to let
existing statutory law and case law stare decisis specify the
rules corporations should follow in this area.
4)Foreign Corporations Don't File Articles of Incorporation in
California: Foreign corporations, or organizations which are
headquartered outside of the State of California, do not file
articles of incorporation in California. Many of these
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corporations do business in California. This bill only
specifies that those corporations who file articles of
corporation in California should specify law enforcement
contacts. Therefore, this bill would seem to only apply to
California corporations and not corporations who are
headquartered out of the state as foreign corporations.
5)Argument in Support: According to the California State
Sheriffs' Association, "We are pleased to support Assembly
Bill 1993, which would require large technology corporations
to designate a corporate law enforcement contact.
"Over the years, law enforcement has witnessed the increased
use of technology to promote criminal activity. As a result,
law enforcement has an interest in securing access to the
resulting data.
"Unfortunately, many law enforcement requests for data go
unnoticed because the receiving entities do not have
designated contacts. This can have adverse consequences for
law enforcement and the justice system as a whole because it
creates a missed opportunity to review potentially
incriminating evidence. Consequently, these internal failures
can provide the suspected criminal with an advantageous
limitation on evidence.
"AB 1993 solves the issue of overlooked requests by requiring
technology companies to provide a designated contact person.
This bill ensures that law enforcement will have a defined
person receive and review their request. This will reduce the
likelihood that a request for information via a search warrant
goes unnoticed."
6)Argument in Opposition: According to the California Cable &
Telecommunications
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Association (CCTA), "AB 1993 would create an overly burdensome
process for businesses to communicate with and respond to
requests from law enforcement agencies. CCTA member
companies' existing processes for working with law enforcement
agencies in criminal cases or urgent situations are effective
and efficient, and, at the same time, balance law enforcement
needs and customer privacy. This bill would create a
bureaucratic process ill-designed for multistate businesses
with tens of millions of customers.
"AB 1993 would require the California Attorney General to
establish minimum qualifications for a corporate law
enforcement contact, by July 1, 2017, for any corporation that
generates customer data for 1,000,000 or more persons annually
from either (1) data searches, (2) geolocation data, or (3)
social media. The minimum qualifications would require that
'the contact have continual availability and authority to make
decisions regarding warrants and the disclosure of information
and data.' Any information, whether it is located in or out
of California, requested by law enforcement would have to be
provided within five business days.
"CCTA member companies are multistate businesses that operate
24 hours a day, utilizing shared services throughout the
country, with tens of millions of customers. While our member
companies do have law enforcement contacts, there is not just
one 'contact' who can be continually available and has the
authority to make decisions regarding warrants and the
disclosure of information. Instead, the companies employ
specialized units specially trained to work with law
enforcement agencies across the nation. AB 1993 would empower
the California Attorney General to dictate how CCTA member
companies operate and work with law enforcement in California,
creating a state specific mandate that can only complicate and
impair work with local law enforcement agencies."
7)Prior Legislation:
a) SB 178 (Leno), Chapter 651, Statutes of 2015, prohibited
a government entity from compelling the production of, or
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access to, electronic-communication information or
electronic-device information without a search warrant or
wiretap order, except under specified emergency situations.
b) SB 467 (Leno) of the 2013-2014 Legislative Session,
would have required a search warrant when a governmental
agency seeks to obtain the contents of a wire or electronic
communication that is stored, held or maintained by a
provider of electronic communication services or remote
computing services. SB 467 was vetoed.
c) SB 1434 (Leno), of the 2011-12 Legislative Session,
would have required a government entity to get a search
warrant in order to obtain the location information of an
electronic device. SB 1434 was vetoed.
d) SB 914 (Leno), of the 2011-2012 Legislative Session,
would have restricted the authority of law enforcement to
search portable electronic devices without obtaining a
search warrant. SB 914 was vetoed.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
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Opposition
California Cable & Telecommunications Association
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744