BILL ANALYSIS                                                                                                                                                                                                    Ó



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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1993 (Irwin)


          As Amended  August 19, 2016


          Majority vote


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          |ASSEMBLY:  |54-19 |(May 19, 2016) |SENATE: |      | (August 25,     |
          |           |      |               |        |25-13 |2016)            |
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          Original Committee Reference:  PUB. S.


          SUMMARY:  Mandates that specified technology companies specify  
          law enforcement contacts to coordinate with law enforcement  
          agency investigations.


          The Senate amendments:  


          1)Make technical, non-substantive changes to the bill.  


          2)Declares that provisions of this bill are intended to reduce  
            investigation time and facilitate efficient communication  
            between law enforcement personnel and electronic communication  
            service providers that provide service to the general public  
            and that have received requests from law enforcement personnel  
            for electronic communication and electronic communication  
            information.  They shall not be construed to apply to a person  








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            or entity solely on the basis that the person or entity is a  
            subscriber to an electronic communication service or a  
            customer of an electronic communication service provider.


          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.  


          EXISTING STATE LAW:  


          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.  
          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.  


          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.  


          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.  










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          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.  


          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.  


          7)Requires a provider of electronic communication service or  
            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.  


          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. 


          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.  


          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  








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            be extended for an additional 90 day period upon a renewed  
            request by the peace officer.  


          AS PASSED BY THE ASSEMBLY, this bill:  

          1)Provided that every specified service provider corporation  
            shall, at least annually, file a statement with the Attorney  
            General identifying the corporate law enforcement contact or  
            contacts.  If a corporation designates any new corporate law  
            enforcement contact or contacts, the corporation shall file a  
            statement with the Attorney General identifying the new  
            corporate law enforcement contact or contacts.  

          2)Required by July 1, 2017, specified technology corporations  
            shall, at minimum, provide the following through a specified  
            law enforcement contact:  


             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.  

          3)Required a corporation subject to these provisions to respond  
            to a properly served warrant within five business days.

          4)Provided that the specified corporations shall designate  
            corporate law enforcement contacts which are responsible for  
            the specified requirements.  Those requirements may be  
            fulfilled by means of an internet web portal,  
            telecommunications, or any combination of those communication  
            methods.  








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          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, one-time costs potentially in excess of $250,000 and  
          ongoing costs of less than $100,000 (General Fund) to the  
          Department of Justice (DOJ) to receive, review, and consolidate  
          the service provider statements to make a record available to  
          law enforcement agencies, as well as to update the record for  
          revised and new provider statements on a continual basis.   
          Workload costs would be dependent on the volume of service  
          provider statements filed, which is unknown but potentially  
          significant given the broad definition of "service provider"  
          potentially subject to the reporting requirements of this bill.


          COMMENTS:  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 guidelines for such requests is apparent.  










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          "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."


          Please see the policy committee analysis for a full discussion  
          of this bill.


          Analysis Prepared by:                                             
                          Gabriel Caswell / PUB. S. / (916) 319-3744  FN:  
          0004806












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