BILL NUMBER: SB 178	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senators Leno and Anderson
   (Coauthors: Senators Cannella, Gaines, Hertzberg, McGuire,
Nielsen, and Roth)
   (Coauthors: Assembly Members Chiu, Dahle, Gordon, Maienschein,
Quirk, Steinorth, and Ting)

                        FEBRUARY 9, 2015

   An act to add Chapter 3.6 (commencing with Section 1546) to Title
12 of Part 2 of the Penal Code, relating to privacy.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 178, as introduced, Leno. Privacy: electronic communications:
search warrant.
   Existing law provides that a search warrant may only be issued
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. Existing
law also states the grounds upon which a search warrant may be
issued, including, among other grounds, 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, or when there is a warrant
to arrest a person.
   This bill would prohibit a government entity from compelling the
production of or access to electronic communication information or
electronic device information, as defined, without a search warrant
or wiretap order, except for emergency situations, as defined. The
bill would define a number of terms for those purposes, including,
among others, "electronic communication information," "service
provider," and "electronic device information." The bill would
require a search warrant for electronic communication information to
encompass no more information than is necessary to achieve the
objective of the search and would impose other conditions on the use
of the search warrant or wiretap order and the information obtained,
including retention and disclosure. The bill would, subject to
exceptions, require a government entity that executes a search
warrant or wiretap order pursuant to these provisions to
contemporaneously provide notice, as specified, to the identified
target, that informs the recipient that information about the
recipient has been compelled or requested, and that states the nature
of the government investigation under which the information is
sought. The bill would authorize a delay of 90 days, subject to
renewal, for providing the notice under specified conditions that
constitute an emergency. The bill would require the notice to include
a copy of the warrant or order or statement describing the emergency
under which the notice was delayed. The bill would provide that
electronic communication information obtained in violation of these
provisions would be inadmissible in a criminal, civil, or
administrative proceeding. The bill would also require a government
entity that obtains electronic communication information pursuant to
these provisions to make an annual report to the Attorney General,
and would require the Department of Justice to annually publish a
summary of the report on its Internet Web site. By requiring local
law enforcement entities to make those annual reports, this bill
would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 3.6 (commencing with Section 1546) is added to
Title 12 of Part 2 of the Penal Code, to read:
      CHAPTER 3.6.  ELECTRONIC COMMUNICATIONS PRIVACY ACT


   1546.  For purposes of this chapter, the following definitions
apply:
   (a) An "adverse result" means any of the following:
   (1) Danger to the life or physical safety of an individual.
   (2) Flight from prosecution.
   (3) Imminent destruction of or tampering with evidence.
   (4) Intimidation of potential witnesses.
   (5) Serious jeopardy to an investigation or undue delay of a
trial.
   (b) "Authorized possessor" means the possessor of an electronic
device when that person is the owner of the device or has been
authorized to possess the device by the owner of the device.
   (c) "Electronic communication" means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of any
nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system.
   (d) "Electronic communication information" is any information
about an electronic communication or the use of an electronic
communication service, including, but not limited to, the contents,
sender, recipients, format, location, or time of the sender or
recipients at any point during the communication, or any information
pertaining to any individual or device participating in the
communication, including, but not limited to, an IP address.
Electronic communication information does not include subscriber
information as defined in this chapter.
   (e) "Electronic communication service" is a service that provides
to its subscribers or users the ability to send or receive electronic
communications, including any service that acts as an intermediary
in the transmission of electronic communications, or stores
electronic communication information.
   (f) "Electronic device" means a device that stores, generates, or
transmits information in electronic form.
   (g) "Electronic device information" means any information stored
on or generated through the operation of an electronic device,
including the current and prior locations of the device.
   (h) "Government entity" means a department or agency of the state
or a political subdivision thereof, or an individual acting for or on
behalf of the state or a political subdivision thereof.
   (i) "Service provider" means a person or entity offering an
electronic communication service.
   (j) "Specific consent" is consent delivered directly to the
government entity seeking information that is given in response to a
specific request and is valid only for a specified period of time.
Specific consent may be withdrawn at any time.
   (k) "Subscriber information" means the name, street address, phone
number, email address, or similar contact information provided by
the subscriber to the provider of an electronic communication service
for the purpose of establishing a communication channel between that
subscriber and that provider, a subscriber or account number or
identifier, the length of service, and the types of services used by
a user of or subscriber to a service provider.
   1546.1.  (a) Except as provided in this section, a government
entity shall not do any of the following:
   (1) Compel the production of or access to electronic communication
information from a service provider.
   (2) Compel the production of or access to electronic device
information from any person or entity except the authorized possessor
of the device.
   (3) Access electronic device information by means of physical
interaction or electronic communication with the device, except with
the specific consent of the authorized possessor of the device.
   (b) A government entity may compel the production of or access to
electronic communication information or electronic device
information, or access electronic device information by means of
physical interaction or electronic communication with the device,
subject to subdivision (c) and only pursuant to a wiretap order
pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15
of Part 1, or pursuant to a search warrant pursuant to Chapter 3
(commencing with Section 1523), provided that the warrant shall not
compel the production of or authorize access to the contents of any
electronic communication initiated after the issuance of the warrant.

   (c) Any warrant or wiretap order for electronic communication
information or electronic device information shall comply with the
following:
   (1) The order shall be limited to only that information necessary
to achieve the objective of the warrant or wiretap order, including
by specifying the target individuals or accounts, the applications or
services, the types of information, and the time periods covered, as
appropriate.
   (2) The order shall identify the effective date upon which the
warrant is to be executed, not to exceed 10 days from the date the
warrant is signed, or explicitly state whether the warrant or wiretap
order encompasses any information created after its issuance.
   (3) The order shall comply with all other provisions of California
and federal law, including any provisions prohibiting, limiting, or
imposing additional requirements on the use of search warrants or
wiretap orders.
   (d) When issuing any warrant or wiretap order for electronic
communication information or electronic device information, a court
may, at its discretion, do any or all of the following:
   (1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information necessary
to achieve the objective of the warrant or order is produced or
accessed.
   (2) Require that any information obtained through the execution of
the warrant or order that is unrelated to the objective of the
warrant be destroyed as soon as feasible after that determination is
made.
   (e) A service provider may disclose, but shall not be required to
disclose, electronic communication information or subscriber
information when that disclosure is not otherwise prohibited by law.
   (f) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (e), it
shall delete that information within 90 days unless the entity has or
obtains the specific consent of the sender or recipient of the
electronic communications about which information was disclosed or
obtains a court order authorizing the retention of the information. A
court shall issue a retention order upon a finding that the
conditions justifying the initial voluntary disclosure persist, in
which case the court shall authorize the retention of the information
only for so long as those conditions persist, or there is probable
cause to believe that the information constitutes evidence that a
crime has been committed.
   (g) If a government entity requests that a service provider
disclose information pursuant to an emergency under either Section
2702(b)(8) or 2702(c)(4) of Title 18 U.S.C., the entity shall, within
three days after seeking disclosure, file with the appropriate court
a motion seeking approval of the requested emergency disclosures
that shall set forth the facts giving rise to the emergency. The
court shall promptly rule on the motion and shall order the immediate
destruction of all information received in response to the request
upon a finding that the facts did not give rise to an emergency under
either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C.
   1546.2.  (a) Except as otherwise provided in this section, any
government entity that executes a warrant or wiretap order or issues
an emergency request pursuant to Section 1546.1 shall
contemporaneously serve upon, or deliver by registered or first-class
mail, electronic mail, or other means reasonably calculated to be
effective, the identified targets of the warrant, order, or emergency
request, a notice that informs the recipient that information about
the recipient has been compelled or requested, and states with
reasonable specificity the nature of the government investigation
under which the information is sought. The notice shall include a
copy of the warrant or order, or a written statement setting forth
facts giving rise to the emergency.
   (b) If there is no identified target of a warrant, wiretap order,
or emergency request at the time of its issuance, the government
entity shall take reasonable steps to provide the notice, within
three days of the execution of the warrant, to all individuals about
whom information was disclosed.
   (c) (1) When a wiretap order or search warrant is sought under
Section 1546.1, the government entity may include in the application
a request supported by a sworn affidavit for an order delaying
notification and prohibiting the party on whom the warrant or order
is served from notifying the subject of the warrant or order. 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, 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 not to exceed 90 days.
   (2) The court may grant extensions of the delay of up to 90 days
each on the same grounds as provided in paragraph (1).
   (3) Upon expiration of the period of delay of the warrant
notification, the government 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, each individual whose electronic communication
information was acquired, a document that includes the information
described in subdivision (a), a copy of all information disclosed or
a summary of that information, including, at a minimum, the number
and types of records disclosed, the date and time when the earliest
and latest records were created, and a statement of the grounds for
the court's determination to grant a delay in notifying the
individual.
   (4) Except as otherwise provided in this section, nothing in this
chapter shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for
electronic communication information or electronic device
information.
   1546.4.  (a) Except as proof of a violation of this chapter, no
evidence obtained or retained in violation of this chapter shall be
admissible in a criminal, civil or administrative proceeding, or used
in an affidavit in an effort to obtain a search warrant or court
order.
   (b) The Attorney General may commence a civil action to compel any
government entity to comply with the provisions of this chapter.
   (c) If a warrant or wiretap order does not comply with this
chapter, a service provider, any other recipient of the warrant or
wiretap order, or any individual whose information is targeted by the
warrant or wiretap order, may petition the issuing court to void or
modify the warrant or wiretap order or to order the destruction of
any information obtained in violation of this chapter.
   1546.6.  A government entity that obtains electronic communication
information pursuant to this chapter shall make an annual report to
the Attorney General. The report shall be made on or before February
1, 2017, and each February 1 thereafter. To the extent it can be
reasonably determined, the report shall include all of the following:

   (a) The number of requests or demands for electronic communication
information.
   (b) The number of requests or demands made, and the number of
records received for each of the following types of records:
   (1) Electronic communication content.
   (2) Location information.
   (3) Electronic device information.
   (4) Other electronic communication information.
   (c) For each of the types of records listed in subdivision (b),
all of the following:
   (1) The number of requests or demands that were each of the
following:
   (A) Wiretap orders obtained pursuant to this chapter.
   (B) Search warrants obtained pursuant to this chapter.
   (C) Emergency requests pursuant to subdivision (g) of Section
1546.1.
   (2) The total number of users whose information was requested or
demanded.
   (3) The total number of requests or demands that did not specify a
target individual.
   (4) The number of requests or demands complied with in full,
partially complied with, or refused.
   (5) The number of times the notice to the affected party was
delayed and the average length of the delay.
   (6) The number of times records were shared with other government
entities or any department or agency of the federal government, and
the agencies with which the records were shared.
   (7) For contents of electronic communications, the total number of
communications contents received.
   (8) For location information, the average period for which
location information was obtained or received and the total number of
location records received.
   (9) For other electronic communication information, the types of
records requested and the total number of records of each type
received.
   1546.8.  (a) On or before April 1, 2017, and each April 1
thereafter, the Department of Justice shall publish on its Internet
Web site both of the following:
   (1) The individual reports from each government entity that
requests or compels the production of contents or records pertaining
to an electronic communication or location information.
   (2) A summary aggregating each of the items in subdivisions (a) to
(c), inclusive of Section 1546.6.
   (b) Nothing in this chapter shall prohibit or restrict a service
provider from producing an annual report summarizing the demands or
requests it receives under this chapter.
  SEC. 2.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.