Amended in Senate March 16, 2015

Senate BillNo. 178


Introduced by Senators Leno and Anderson

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(Principal coauthor: Assembly Member Gatto)

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(Coauthors: Senators Cannella, Gaines, Hertzberg, McGuire, Nielsen, and Roth)

(Coauthors: Assembly Members Chiu, Dahle, Gordon, Maienschein, Quirk, Steinorth,begin delete andend delete Tingbegin insert, and Weberend insert)

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 amended, 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.begin insert The bill would provide that a California or foreign corporation, and its officers, employees, and agents, are not subject to any cause of action for providing records, information, facilities, or assistance in accordance with the terms of a warrant or wiretap order issued pursuant to these provisions.end insert 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:

P3    1

SECTION 1.  

Chapter 3.6 (commencing with Section 1546) is
2added to Title 12 of Part 2 of the Penal Code, to read:

3 

4Chapter  3.6. Electronic Communications Privacy Act
5

 

6

1546.  

For purposes of this chapter, the following definitions
7apply:

8(a) An “adverse result” means any of the following:

9(1) Danger to the life or physical safety of an individual.

10(2) Flight from prosecution.

11(3) Imminent destruction of or tampering with evidence.

12(4) Intimidation of potential witnesses.

13(5) Serious jeopardy to an investigation or undue delay of a
14trial.

15(b) “Authorized possessor” means the possessor of an electronic
16device when that person is the owner of the device or has been
17authorized to possess the device by the owner of the device.

18(c) “Electronic communication” means the transfer of signs,
19signals, writings, images, sounds, data, or intelligence of any nature
20in whole or in part by a wire, radio, electromagnetic, photoelectric,
21or photo-optical system.

22(d) “Electronic communication information” is any information
23about an electronic communication or the use of an electronic
24communication service, including, but not limited to, the contents,
25sender, recipients, format,begin delete location, or timeend deletebegin insert or locationend insert of the
26sender or recipients at any point during the communication,begin insert the
27time or date the communication was created, sent, or received,end insert
or
28any information pertaining to any individual or device participating
29in the communication, including, but not limited to, an IP address.
30Electronic communication information does not include subscriber
31information as defined in this chapter.

32(e) “Electronic communication service” is a service that provides
33to its subscribers or users the ability to send or receive electronic
34communications, including any service that acts as an intermediary
35in the transmission of electronic communications, or stores
36electronic communication information.

37(f) “Electronic device” means a device that stores, generates,
38or transmits information in electronic form.

P4    1(g) “Electronic device information” means any information
2stored on or generated through the operation of an electronic
3device, including the current and prior locations of the device.

4(h) “Government entity” means a department or agency of the
5state or a political subdivision thereof, or an individual acting for
6or on behalf of the state or a political subdivision thereof.

7(i) “Service provider” means a person or entity offering an
8electronic communication service.

9(j) “Specific consent” is consent delivered directly to the
10government entity seekingbegin delete information that is given in response
11to a specific request and is valid only for a specified period of time.
12Specific consent may be withdrawn at any time.end delete
begin insert information.end insert

13(k) “Subscriber information” means the name, street address,
14begin delete phoneend deletebegin insert telephoneend insert number, email address, or similar contact
15information provided by the subscriber to the providerbegin delete of an
16electronic communication service for the purpose of establishing
17a communication channel between that subscriber and that
18provider,end delete
begin insert to establish or maintain an account or communication
19channel,end insert
a subscriber or account number or identifier, the length
20of service, and the types of services used by a user of or subscriber
21to a service provider.

22

1546.1.  

(a) Except as provided in this section, a government
23entity shall not do any of the following:

24(1) Compel the production of or access to electronic
25communication information from a service provider.

26(2) Compel the production of or access to electronic device
27information from any person or entity except the authorized
28possessor of the device.

29(3) Access electronic device information by means of physical
30interaction or electronic communication with the device, except
31with the specific consent of the authorized possessor of the device.

32(b) A government entity may compel the production of or access
33to electronic communication information or electronic device
34information, or access electronic device information by means of
35physical interaction or electronic communication with the device,
36subject to subdivision (c) and only pursuant to a wiretap order
37pursuant to Chapter 1.4 (commencing with Section 629.50) of
38Title 15 of Part 1, or pursuant to a search warrant pursuant to
39Chapter 3 (commencing with Section 1523), provided that the
40warrant shall not compel the production of or authorize access to
P5    1the contents of any electronic communication initiated after the
2issuance of the warrant.

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3(c) A government entity may access electronic device
4information by means of physical interaction or electronic
5communication with the device only as follows:

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6(1) In accordance with a wiretap order issued pursuant to
7Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part
81 or in accordance with a search warrant issued pursuant to
9Chapter 3 (commencing with Section 1523), provided that a
10warrant shall not authorize accessing the contents of any electronic
11communication initiated after the issuance of the warrant.

end insert
begin insert

12(2) With the specific consent of the owner or authorized
13possessor of the device, when a government entity is the intended
14recipient of an electronic communication initiated by the owner
15or authorized possessor of the device.

end insert
begin insert

16(3) With the specific consent of the owner of the device when
17the device has been reported as lost or stolen.

end insert
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18(4) If the government entity, in good faith, believes that an
19emergency involving imminent danger of death or serious physical
20injury to any person requires access to the electronic device
21information.

end insert
begin insert

22(5) If the government entity, in good faith, believes the device
23to be lost, stolen, or abandoned, provided that the entity shall only
24access electronic device information in order to attempt to identify,
25verify, or contact the owner or authorized possessor of the device.

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26(c)

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27begin insert(d)end insert Any warrant or wiretap order for electronic communication
28information or electronic device information shall comply with
29the following:

30(1) Thebegin insert warrant orend insert order shall be limited to only that information
31necessary to achieve the objective of the warrant or wiretap order,
32including by specifying the target individuals or accounts, the
33applications or services, the types of information, and the time
34periods covered, as appropriate.

35(2) Thebegin insert warrant orend insert order shall identify the effective date upon
36which the warrant is to be executed, not to exceed 10 days from
37the date the warrant is signed, or explicitly state whether the
38warrant or wiretap order encompasses any information created
39after its issuance.

P6    1(3) Thebegin insert warrant orend insert order shall comply with all other provisions
2of California and federal law, including any provisions prohibiting,
3limiting, or imposing additional requirements on the use of search
4warrants or wiretap orders.

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5(d)

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6begin insert(e)end insert When issuing any warrant or wiretap order for electronic
7communication information or electronic device information, a
8court may, at its discretion, do any or all of the following:

9(1) Appoint a special master, as described in subdivision (d) of
10Section 1524, charged with ensuring that only information
11necessary to achieve the objective of the warrant or order is
12produced or accessed.

13(2) Require that any information obtained through the execution
14of the warrant or order that is unrelated to the objective of the
15warrant be destroyed as soon as feasible after that determination
16is made.

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17(e)

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18begin insert(f)end insert A service provider may disclose, but shall not be required
19to disclose, electronic communication information or subscriber
20information when that disclosure is not otherwise prohibited by
21law.

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22(f)

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23begin insert(g)end insert If a government entity receives electronic communication
24information voluntarily provided pursuant to subdivisionbegin delete (e)end deletebegin insert (f)end insert,
25it shall delete that information within 90 days unless the entity has
26or obtains the specific consent of the sender or recipient of the
27electronic communications about which information was disclosed
28or obtains a court order authorizing the retention of the information.
29A court shall issue a retention order upon a finding that the
30conditions justifying the initial voluntary disclosure persist, in
31which case the court shall authorize the retention of the information
32only for so long as those conditions persist, or there is probable
33cause to believe that the information constitutes evidence that a
34crime has been committed.

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35(g)

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36begin insert(h)end insert If a government entity requests that a service provider
37disclose informationbegin insert, or if the government entity obtains
38information,end insert
pursuant to an emergencybegin delete under either Section
392702(b)(8) or 2702(c)(4) of Title 18 U.S.C.,end delete
begin insert involving danger of
40death or serious physical injury to a person, that requires access
P7    1to the electronic information without delay,end insert
the entity shall, within
2three days after seeking disclosure, file with the appropriate court
3a motion seeking approval of the requested emergency disclosures
4that shall set forth the facts giving rise to the emergency. The court
5shall promptly rule on the motion and shall order the immediate
6destruction of all information received in response to the request
7upon a finding that the facts did not give rise to anbegin delete emergency
8under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C.end delete

9begin insert emergency.end insert

begin insert

10(i) This section does not limit the authority of a governmental
11entity to use an administrative, grand jury, trial, or civil discovery
12subpoena to do either of the following:

end insert
begin insert

13(1) Require an originator, addressee, or intended recipient of
14an electronic communication to disclose any electronic
15communication information associated with that communication.

end insert
begin insert

16(2) Require an entity that provides electronic communications
17services to its officers, directors, employees, or agents to disclose
18electronic communication information associated with an
19electronic communication to or from an officer, director, employee,
20or agent of the entity.

end insert
21

1546.2.  

(a) Except as otherwise provided in this section, any
22government entity that executes a warrant or wiretap order or issues
23an emergency request pursuant to Section 1546.1 shall
24contemporaneously serve upon, or deliver by registered or
25first-class mail, electronic mail, or other means reasonably
26calculated to be effective, the identified targets of the warrant,
27order, or emergency request, a notice that informs the recipient
28that information about the recipient has been compelled or
29requested, and states with reasonable specificity the nature of the
30government investigation under which the information is sought.
31The notice shall include a copy of the warrant or order, or a written
32statement setting forth facts giving rise to the emergency.

33(b) If there is no identified target of a warrant, wiretap order,
34or emergency request at the time of its issuance, the government
35entity shall take reasonable steps to provide the notice, within three
36days of the execution of the warrant, to all individuals about whom
37information was disclosedbegin insert or obtainedend insert.

38(c) (1) When a wiretap order or search warrant is sought under
39Section 1546.1, the government entity maybegin delete include in the
40applicationend delete
begin insert submitend insert a request supported by a sworn affidavit for an
P8    1order delaying notification and prohibitingbegin delete theend deletebegin insert anyend insert partybegin delete on whom
2the warrant or order is served from notifying the subject of the
3warrant or order.end delete
begin insert providing information from notifying any other
4party that information has been sought.end insert
The court shallbegin delete grant the
5requestend delete
begin insert issue the orderend insert if the court determines that there is reason
6to believe that notificationbegin delete of the existence of the warrantend delete may
7have an adverse result, but only for the period of time that the court
8finds there is reason to believe that thebegin delete warrantend delete notification may
9have that adverse result, and not to exceed 90 days.

10(2) The court may grant extensions of the delay of up to 90 days
11each on the same grounds as provided in paragraph (1).

12(3) Upon expiration of the period of delay of thebegin delete warrantend delete
13 notification, the government entity shall serve upon, or deliver by
14registered or first-class mail, electronic mail, or other means
15reasonably calculated to be effective as specified by the court
16issuing thebegin delete warrantend deletebegin insert order authorizing delayed notificationend insert, each
17individual whose electronic communication information was
18acquired, a document that includes the information described in
19subdivision (a), a copy of all information disclosed or a summary
20of that information, including, at a minimum, the number and types
21of records disclosed, the date and time when the earliest and latest
22records were created, and a statement of the grounds for the court’s
23determination to grant a delay in notifying the individual.

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24(4)

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25begin insert(d)end insert Except as otherwise provided in this section, nothing in this
26chapter shall prohibit or limit a service provider or any other party
27from disclosing information about any request or demand for
28electronic communication information or electronic device
29information.

30

1546.4.  

(a) Except as proof of a violation of this chapter, no
31evidence obtained or retained in violation of this chapter shall be
32admissible in a criminal, civilbegin insert,end insert or administrative proceeding, or
33used in an affidavit in an effort to obtain a search warrant or court
34order.

35(b) The Attorney General may commence a civil action to
36compel any government entity to comply with the provisions of
37this chapter.

38(c) If a warrant or wiretap order does not comply with this
39chapter, a service provider, any other recipient of the warrant or
40wiretap order, or any individual whose information is targeted by
P9    1the warrant or wiretap order, may petition the issuing court to void
2or modify the warrant or wiretap order or to order the destruction
3of any information obtained in violation of this chapter.

begin insert

4(d) A California or foreign corporation, and its officers,
5employees, and agents, are not subject to any cause of action for
6providing records, information, facilities, or assistance in
7accordance with the terms of a warrant or wiretap order issued
8pursuant to this chapter.

end insert
9

1546.6.  

A government entity that obtains electronic
10communication information pursuant to this chapter shall make
11an annual report to the Attorney General. The report shall be made
12on or before February 1, 2017, and each February 1 thereafter. To
13the extent it can be reasonably determined, the report shall include
14all of the following:

15(a) The number of requests or demands for electronic
16communication information.

17(b) The number of requests or demands made, and the number
18of records received for each of the following types of records:

19(1) Electronic communication content.

20(2) Location information.

21(3) Electronic device information.

22(4) Other electronic communication information.

23(c) For each of the types of records listed in subdivision (b), all
24of the following:

25(1) The number of requests or demands that were each of the
26following:

27(A) Wiretap orders obtained pursuant to this chapter.

28(B) Search warrants obtained pursuant to this chapter.

29(C) Emergency requests pursuant to subdivisionbegin delete (g)end deletebegin insert (h)end insert of
30Section 1546.1.

31(2) The total number of users whose information was requested
32or demanded.

33(3) The total number of requests or demands that did not specify
34a target individual.

35(4) The number of requests or demands complied with in full,
36partially complied with, or refused.

37(5) The number of times the notice to the affected party was
38delayed and the average length of the delay.

P10   1(6) The number of times records were shared with other
2government entities or any department or agency of the federal
3government, and the agencies with which the records were shared.

4(7) For contents of electronic communications, the total number
5of communications contents received.

6(8) For location information, the average period for which
7location information was obtained or received and the total number
8of location records received.

9(9) For other electronic communication information, the types
10of records requested and the total number of records of each type
11received.

12

1546.8.  

(a) On or before April 1, 2017, and each April 1
13thereafter, the Department of Justice shall publish on its Internet
14Web site both of the following:

15(1) The individual reports from each government entity that
16requests or compels the production of contents or records pertaining
17to an electronic communication or location information.

18(2) A summary aggregating each of the items in subdivisions
19(a) to (c), inclusive of Section 1546.6.

20(b) Nothing in this chapter shall prohibit or restrict a service
21provider from producing an annual report summarizing the
22demands or requests it receives under this chapter.

23

SEC. 2.  

If the Commission on State Mandates determines that
24this act contains costs mandated by the state, reimbursement to
25local agencies and school districts for those costs shall be made
26pursuant to Part 7 (commencing with Section 17500) of Division
274 of Title 2 of the Government Code.



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