BILL NUMBER: SB 178	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 16, 2015

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

                        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.  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.
 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  
or location  of the sender or recipients at any point during
the communication,  the time or date the communication was
created, sent, or received,  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.
  information. 
   (k) "Subscriber information" means the name, street address,
 phone   telephone  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,   to establish or maintain
an account or communication channel,  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) A government entity may access electronic device information
by means of physical interaction or electronic communication with the
device only as follows:  
   (1) In accordance with a wiretap order issued pursuant to Chapter
1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in
accordance with a search warrant issued pursuant to Chapter 3
(commencing with Section 1523), provided that a warrant shall not
authorize accessing the contents of any electronic communication
initiated after the issuance of the warrant.  
   (2) With the specific consent of the owner or authorized possessor
of the device, when a government entity is the intended recipient of
an electronic communication initiated by the owner or authorized
possessor of the device.  
   (3) With the specific consent of the owner of the device when the
device has been reported as lost or stolen.  
   (4) If the government entity, in good faith, believes that an
emergency involving imminent danger of death or serious physical
injury to any person requires access to the electronic device
information.  
   (5) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the entity shall only
access electronic device information in order to attempt to
identify, verify, or contact the owner or authorized possessor of the
device.  
   (c) 
    (d)  Any warrant or wiretap order for electronic
communication information or electronic device information shall
comply with the following:
   (1) The  warrant or  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  warrant or  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  warrant or  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) 
    (e)  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) 
    (f)  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) 
    (g)  If a government entity receives electronic
communication information voluntarily provided pursuant to
subdivision  (e)   (f)  , 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) 
    (h)  If a government entity requests that a service
provider disclose information  , or if the government entity
obtains information,  pursuant to an emergency  under
either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C., 
 involving danger of death or serious physical injury to a
person, that requires access to the electronic information without
delay,  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.  
emergency.  
   (i) This section does not limit the authority of a governmental
entity to use an administrative, grand jury, trial, or civil
discovery subpoena to do either of the following:  
   (1) Require an originator, addressee, or intended recipient of an
electronic communication to disclose any electronic communication
information associated with that communication.  
   (2) Require an entity that provides electronic communications
services to its officers, directors, employees, or agents to disclose
electronic communication information associated with an electronic
communication to or from an officer, director, employee, or agent of
the entity. 
   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  or obtained  .
   (c) (1) When a wiretap order or search warrant is sought under
Section 1546.1, the government entity may  include in the
application   submit  a request supported by a
sworn affidavit for an order delaying notification and prohibiting
 the   any  party  on whom the
warrant or order is served from notifying the subject of the warrant
or order.   providing information from notifying any
other party that information has been sought.  The court shall
 grant the request   issue the order  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   order authorizing
delayed notification  , 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) 
    (d)  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. 
   (d) 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 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)
  (h)  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.