Amended in Senate June 2, 2015

Amended in Senate April 22, 2015

Amended in Senate March 16, 2015

Senate Bill No. 178

Introduced by Senators Leno and Anderson

(Principal coauthor: Assembly Member Gatto)

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

(Coauthors: Assembly Members Chiu, Dahle, Gordon, Maienschein, begin insert Obernolte, end insert Quirk, 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.

(1) 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” and “electronic device information,” which the bill defines collectively as “electronic information.” The bill would require a search warrant for electronic 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 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, wiretap order, or other order issued pursuant to these provisions. begin delete The bill would also require a government entity that obtains electronic 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. end delete

(2) The California Constitution provides for the Right to Truth in Evidence, which requires a 2⁄3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.

Because this bill would exclude evidence obtained or retained in violation of its provisions in a criminal proceeding, it requires a 2⁄3 vote of the Legislature.

begin delete

(3) 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.

end delete begin delete

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.

end delete

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete yes end delete begin insert no end insert .

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” means any
information about an electronic communication or the use of an
electronic communication service, including, but not limited to,
the contents, sender, recipients, format, 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” means 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) “Electronic information” means electronic communication
information or electronic device information.

(i) “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.

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

(k) “Specific consent” begin delete is end delete begin insert means end insert consent delivered directly to
the government entity seeking information.

(l) “Subscriber information” means the name, street address,
telephone number, email address, or similar contact information
provided by the subscriber to the 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.

(b) A government entity may compel the production of or access
to electronic information subject to subdivision (d) 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 authorized possessor of the
device, including when a government entity is the intended
recipient of an electronic communication initiated by the authorized
possessor of the device.

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

(4) If the government entity, in good faith, believes that an
emergency involving 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.

(d) Any warrant or wiretap order for electronic 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 or order 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.

(e) When issuing any warrant or wiretap order for electronic
information, or upon the petition from the target or recipient of
the warrant or wiretap order, 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.

(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
state or federal law.

(g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (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.

(h) If a government entity obtains electronic information
pursuant to an emergency 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
obtaining the electronic information, file with the appropriate court
a motion seeking approval of the 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 obtained, upon a finding that the
facts did not give rise to an emergency.

(i) This section does not limit the authority of a government
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 for the
purpose of carrying out their duties, 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
obtains electronic information in an emergency 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 or access at the time of its issuance, the
government entity shall begin delete take reasonable steps to provide the notice,
within three days of the execution of the warrant, wiretap order,
or emergency request or access, to all individuals about whom
information was disclosed or obtained. end delete begin insert submit to the Department
of Justice within 72 hours a report that states with reasonable
specificity the nature of the government investigation under which
the information was sought and includes a copy of the warrant,
or order, or a written statement setting forth facts giving rise to
the emergency. The Department of Justice shall publish each report
received pursuant to this subdivision on its Internet Web site within
90 days of receiving the report. end insert

(c) (1) When a wiretap order or search warrant is sought under
Section 1546.1, the government entity may submit a request
supported by a sworn affidavit for an order delaying notification
and prohibiting any party providing information from notifying
any other party that information has been sought. The court shall
issue the order if the court determines that there is reason to believe
that notification may have an adverse result, but only for the period
of time that the court finds there is reason to believe that the
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 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 order
authorizing delayed notification, each individual whose electronic
information was acquired, a document that includes the information
described in subdivision (a), a copy of all electronic information
obtained 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.

(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 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) An individual whose information is targeted by a warrant,
wiretap order, or other legal process that is inconsistent with this
chapter, or the California begin insert Constitution end insert or begin insert the end insert United States
Constitution, or a service provider or any other recipient of the
warrant, wiretap order, or other legal process may petition the
issuing court to void or modify the warrant, wiretap order, or
process, or to order the destruction of any information obtained in
violation of this chapter, the California Constitution, or the United
States Constitution.

(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, court order, statutory
authorization, emergency certification, or wiretap order issued
pursuant to this chapter.

begin delete

1546.6.  

A government entity that obtains electronic 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
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) Other electronic 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 (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.

end delete

begin delete

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.

end delete