Amended in Assembly June 24, 2015

Amended in Senate June 2, 2015

Amended in Senate April 22, 2015

Amended in Senate March 16, 2015

Senate BillNo. 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, Obernolte, 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.

(2) The California Constitution provides for the Right to Truth in Evidence, which requires a 23 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 23 vote of the Legislature.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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” means any
23information about an electronic communication or the use of an
24electronic communication service, including, but not limited to,
25the contents, sender, recipients, format, or location of the sender
26or recipients at any point during the communication, the time or
27date the communication was created, sent, or received, or any
28information pertaining to any individual or device participating in
29the 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” means a service that
33provides to its subscribers or users the ability to send or receive
34electronic communications, including any service that acts as an
35intermediary in the transmission of electronic communications, or
36stores electronic 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) “Electronic information” means electronic communication
5information or electronic device information.

6(i) “Government entity” means a department or agency of the
7state or a political subdivision thereof, or an individual acting for
8or on behalf of the state or a political subdivision thereof.

9(j) “Service provider” means a person or entity offering an
10electronic communication service.

11(k) “Specific consent” means consentbegin delete deliveredend deletebegin insert providedend insert directly
12to the government entity seekingbegin delete information.end deletebegin insert information,
13including, but not limited to, when the government entity is the
14addressee or intended recipient of an electronic communication.end insert

15(l) “Subscriber information” means the name, street address,
16telephone number, email address, or similar contact information
17provided by the subscriber to the provider to establish or maintain
18an account or communication channel, a subscriber or account
19number or identifier, the length of service, and the types of services
20used by a user of or subscriber to a service provider.

21

1546.1.  

(a) Except as provided in this section, a government
22entity shall not do any of the following:

23(1) Compel the production of or access to electronic
24communication information from a service provider.

25(2) Compel the production of or access to electronic device
26information from any person or entity except the authorized
27possessor of the device.

28(3) Access electronic device information by means of physical
29interaction or electronic communication with thebegin insert electronicend insert device.

30(b) A government entity may compel the production of or access
31to electronic information subject to subdivision (d) and only
32pursuant to a wiretap order pursuant to Chapter 1.4 (commencing
33with Section 629.50) of Title 15 of Part 1, or pursuant to a search
34warrant pursuant to Chapter 3 (commencing with Section 1523),
35provided that the warrant shall not compel the production of or
36authorize access to the contents of any electronic communication
37initiated after the issuance of the warrant.

38(c) A government entity may access electronic device
39information by means of physical interaction or electronic
40communication with the device only as follows:

P5    1(1) In accordance with a wiretap order issued pursuant to
2Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part
31 or in accordance with a search warrant issued pursuant to Chapter
43 (commencing with Section 1523), provided that a warrant shall
5not authorize accessing the contents of any electronic
6communication initiated after the issuance of the warrant.

7(2) With the specific consent of the authorized possessor of the
8begin delete device, including when a government entity is the intended
9recipient of an electronic communication initiated by the authorized
10possessor of the device.end delete
begin insert device.end insert

11(3) With the specific consent of the owner of the device, only
12when the device has been reported as lost or stolen.

13(4) If the government entity, in good faith, believes that an
14emergency involving danger of death or serious physical injury to
15any person requires access to the electronic device information.

16(5) If the government entity, in good faith, believes the device
17to be lost, stolen, or abandoned, provided that the entity shall only
18access electronic device information in order to attempt to identify,
19verify, or contact the owner or authorized possessor of the device.

20(d) Any warrant or wiretap order for electronic information shall
21comply with the following:

22(1) The warrant or order shall be limited to only that information
23necessary to achieve the objective of the warrant or wiretap order,
24including by specifying the target individuals or accounts, the
25applications or services, the types of information, and the time
26periods covered, as appropriate.

27(2) The warrant or order shall identify the effective date upon
28which the warrant or order is to be executed, not to exceed 10 days
29from the date the warrant is signed, or explicitly state whether the
30warrant or wiretap order encompasses any information created
31after its issuance.

32(3) The warrant or order shall comply with all other provisions
33of California and federal law, including any provisions prohibiting,
34limiting, or imposing additional requirements on the use of search
35warrants or wiretap orders.

36(e) When issuing any warrant or wiretap order for electronic
37information, or upon the petition from the target or recipient of
38the warrant or wiretap order, a court may, at its discretion, do any
39or all of the following:

P6    1(1) Appoint a special master, as described in subdivision (d) of
2Section 1524, charged with ensuring that only information
3necessary to achieve the objective of the warrant or order is
4produced or accessed.

5(2) Require that any information obtained through the execution
6of the warrant or order that is unrelated to the objective of the
7warrant be destroyed as soon as feasible after that determination
8is made.

9(f) A service provider may disclose, but shall not be required
10to disclose, electronic communication information or subscriber
11information when that disclosure is not otherwise prohibited by
12state or federal law.

13(g) If a government entity receives electronic communication
14information voluntarily provided pursuant to subdivision (f), it
15shall delete that information within 90 days unless the entity has
16or obtains the specific consent of the sender or recipient of the
17electronic communications about which information was disclosed
18or obtains a court order authorizing the retention of the information.
19A court shall issue a retention order upon a finding that the
20conditions justifying the initial voluntary disclosure persist, in
21which case the court shall authorize the retention of the information
22only for so long as those conditions persist, or there is probable
23cause to believe that the information constitutes evidence that a
24crime has been committed.

25(h) If a government entity obtains electronic information
26pursuant to an emergency involving danger of death or serious
27physical injury to a person, that requires access to the electronic
28information without delay, the entity shall, within three days after
29obtaining the electronic information, file with the appropriate court
30a motion seeking approval of the emergency disclosures that shall
31set forth the facts giving rise to the emergency. The court shall
32promptly rule on the motion and shall order the immediate
33destruction of all information obtained, upon a finding that the
34facts did not give rise to an emergency.

35(i) This section does not limit the authority of a government
36entity to use an administrative, grand jury, trial, or civil discovery
37subpoena to do either of the following:

38(1) Require an originator, addressee, or intended recipient of
39an electronic communication to disclose any electronic
40communication information associated with that communication.

P7    1(2) Require an entity that provides electronic communications
2services to its officers, directors, employees, or agents for the
3purpose of carrying out their duties, to disclose electronic
4communication information associated with an electronic
5communication to or from an officer, director, employee, or agent
6of the entity.

7

1546.2.  

(a) Except as otherwise provided in this section, any
8government entity that executes a warrant or wiretap order or
9obtains electronic information in an emergency pursuant to Section
101546.1 shall contemporaneously serve upon, or deliver by
11registered or first-class mail, electronic mail, or other means
12reasonably calculated to be effective, the identified targets of the
13warrant, order, or emergency request, a notice that informs the
14recipient that information about the recipient has been compelled
15or requested, and states with reasonable specificity the nature of
16the government investigation under which the information is
17sought. The notice shall include a copy of the warrant or order, or
18a written statement setting forth facts giving rise to the emergency.

19(b) If there is no identified target of a warrant, wiretap order,
20or emergency request or access at the time of its issuance, the
21government entity shall submit to the Department of Justice within
2272 hours a report that states with reasonable specificity the nature
23of the government investigation under which the information was
24sought and includes a copy of the warrant, or order, or a written
25statement setting forth facts giving rise to the emergency. The
26Department of Justice shall publish each report received pursuant
27to this subdivision on its Internet Web site within 90 days of
28receiving the report.

29(c) (1) When a wiretap order or search warrant is sought under
30Section 1546.1, the government entity may submit a request
31supported by a sworn affidavit for an order delaying notification
32and prohibiting any party providing information from notifying
33any other party that information has been sought. The court shall
34issue the order if the court determines that there is reason to believe
35that notification may have an adverse result, but only for the period
36of time that the court finds there is reason to believe that the
37notification may have that adverse result, and not to exceed 90
38days.

39(2) The court may grant extensions of the delay of up to 90 days
40each on the same grounds as provided in paragraph (1).

P8    1(3) Upon expiration of the period of delay of the notification,
2the government entity shall serve upon, or deliver by registered or
3first-class mail, electronic mail, or other means reasonably
4calculated to be effective as specified by the court issuing the order
5authorizing delayed notification, each individual whose electronic
6information was acquired, a document that includes the information
7described in subdivision (a), a copy of all electronic information
8obtained or a summary of that information, including, at a
9minimum, the number and types of records disclosed, the date and
10time when the earliest and latest records were created, and a
11statement of the grounds for the court’s determination to grant a
12delay in notifying the individual.

13(d) Except as otherwise provided in this section, nothing in this
14chapter shall prohibit or limit a service provider or any other party
15from disclosing information about any request or demand for
16electronic information.

17

1546.4.  

(a) Except as proof of a violation of this chapter, no
18evidence obtained or retained in violation of this chapter shall be
19admissible in a criminal, civil, or administrative proceeding, or
20used in an affidavit in an effort to obtain a search warrant or court
21order.

22(b) The Attorney General may commence a civil action to
23compel any government entity to comply with the provisions of
24this chapter.

25(c) An individual whose information is targeted by a warrant,
26wiretap order, or other legal process that is inconsistent with this
27chapter, or the California Constitution or the United States
28Constitution, or a service provider or any other recipient of the
29 warrant, wiretap order, or other legal process may petition the
30issuing court to void or modify the warrant, wiretap order, or
31process, or to order the destruction of any information obtained in
32violation of this chapter, the California Constitution, or the United
33States Constitution.

34(d) A California or foreign corporation, and its officers,
35employees, and agents, are not subject to any cause of action for
36providing records, information, facilities, or assistance in
37accordance with the terms of a warrant, court order, statutory
P9    1authorization, emergency certification, or wiretap order issued
2pursuant to this chapter.



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