Amended in Assembly July 7, 2015

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 searchbegin delete warrant or wiretap order,end deletebegin insert warrant, wiretap order, or order for electronic reader records,end insert 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 consent provided directly to the
12government entity seeking information, including, but not limited
13to, when the government entity is the addressee or intended
14recipient of an electronic communication.

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 entitybegin delete exceptend deletebegin insert other thanend insert the
27authorized possessor of the device.

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

30(b) A government entity may compel the production of or access
31to electronicbegin insert communicationend insert informationbegin delete subject to subdivision
32(d) and only pursuant to a wiretap order pursuant to Chapter 1.4
33(commencing with Section 629.50) of Title 15 of Part 1, or
34pursuant to a search warrant pursuant to Chapter 3 (commencing
35with Section 1523), provided that the warrant shall not compel the
36production of or authorize access to the contents of any electronic
37communication initiated after the issuance of the warrant.end delete
begin insert from a
38service provider, or compel the production of or access to
39electronic device information from any person or entity other than
P5    1the authorized possessor of the device only under the following
2circumstances:end insert

begin insert

3(1) Pursuant to a warrant issued pursuant to Chapter 3
4(commencing with Section 1523) and subject to subdivision (d).

end insert
begin insert

5(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
6(commencing with Section 629.50) of Title 15 of Part 1.

end insert
begin insert

7(3) Pursuant to an order for electronic reader records issued
8pursuant to Section 1798.90 of the Civil Code.

end insert

9(c) A government entity may access electronic device
10information by means of physical interaction or electronic
11communication with the device only as follows:

begin insert

12(1) Pursuant to a warrant issued pursuant to Chapter 3
13(commencing with Section 1523) and subject to subdivision (d).

end insert
begin delete

14(1) In accordance with

end delete

15begin insert(2)end insertbegin insertend insertbegin insertPursuant toend insert a wiretap order issued pursuant to Chapter 1.4
16(commencing with Section 629.50) of Title 15 of Partbegin delete 1 or in
17accordance with a search warrant issued pursuant to Chapter 3
18(commencing with Section 1523), provided that a warrant shall
19not authorize accessing the contents of any electronic
20communication initiated after the issuance of the warrant.end delete
begin insert 1.end insert

begin delete

21(2)

end delete

22begin insert(3)end insert With the specific consent of the authorized possessor of the
23device.

begin delete

24(3)

end delete

25begin insert(4)end insert With the specific consent of the owner of the device, only
26when the device has been reported as lost or stolen.

begin delete

27(4)

end delete

28begin insert(5)end insert If the government entity, in good faith, believes that an
29emergency involving danger of death or serious physical injury to
30any person requires access to the electronic device information.

begin delete

31(5)

end delete

32begin insert(6)end insert If the government entity, in good faith, believes the device
33to be lost, stolen, or abandoned, provided that the entity shall only
34access electronic device information in order to attempt to identify,
35verify, or contact the owner or authorized possessor of the device.

36(d) Any warrantbegin delete or wiretap orderend delete for electronic information shall
37comply with the following:

38(1) The warrantbegin delete or orderend delete shall be limited to only that information
39necessary to achieve the objective of thebegin delete warrant or wiretap order,
40includingend delete
begin insert warrant,end insert by specifying thebegin insert time periods covered and, as
P6    1appropriate and reasonable, theend insert
target individuals or accounts,
2the applications orbegin delete services,end deletebegin insert services covered, andend insert the types of
3begin delete information, and the time periods covered, as appropriate.end delete
4begin insert information sought.end insert

begin delete

5(2) The warrant or order shall identify the effective date upon
6which the warrant or order is to be executed, not to exceed 10 days
7from the date the warrant is signed, or explicitly state whether the
8warrant or wiretap order encompasses any information created
9after its issuance.

end delete
begin delete

10(3)

end delete

11begin insert(2)end insert The warrantbegin delete or orderend delete shall comply with all other provisions
12of California and federal law, including any provisions prohibiting,
13limiting, or imposing additional requirements on the use of search
14begin delete warrants or wiretap orders.end deletebegin insert warrants.end insert

15(e) When issuing any warrant orbegin delete wiretapend delete order for electronic
16information, or upon the petition from the target or recipient of
17the warrant orbegin delete wiretapend delete order, a court may, at its discretion, do any
18or all of the following:

19(1) Appoint a special master, as described in subdivision (d) of
20Section 1524, charged with ensuring that only information
21necessary to achieve the objective of the warrant or order is
22produced or accessed.

23(2) Require that any information obtained through the execution
24of the warrant or order that is unrelated to the objective of the
25warrant be destroyed as soon as feasible after that determination
26is made.

27(f) A service provider may disclose, but shall not be required
28to disclose, electronic communication information or subscriber
29information when that disclosure is not otherwise prohibited by
30state or federal law.

31(g) If a government entity receives electronic communication
32information voluntarily provided pursuant to subdivision (f), it
33shallbegin delete deleteend deletebegin insert destroyend insert that information within 90 days unless the
34entity has or obtains the specific consent of the sender or recipient
35of the electronic communications about which information was
36disclosed or obtains a court order authorizing the retention of the
37information. A court shall issue a retention order upon a finding
38that the conditions justifying the initial voluntary disclosure persist,
39in which case the court shall authorize the retention of the
40information only for so long as those conditions persist, or there
P7    1is probable cause to believe that the information constitutes
2evidence that a crime has been committed.

3(h) If a government entity obtains electronic information
4pursuant to an emergency involving danger of death or serious
5physical injury to a person, that requires access to the electronic
6information without delay, the entity shall, within three days after
7obtaining the electronic information, file with the appropriate court
8a motion seeking approval of the emergency disclosures that shall
9set forth the facts giving rise to the emergency. The court shall
10promptly rule on the motion and shall order the immediate
11destruction of all information obtained, upon a finding that the
12facts did not give rise to an emergency.

13(i) This section does not limit the authority of a government
14entity to use an administrative, grand jury, trial, or civil discovery
15subpoena to do either of the following:

16(1) Require an originator, addressee, or intended recipient of
17an electronic communication to disclose any electronic
18communication information associated with that communication.

19(2) Require an entity that provides electronic communications
20services to its officers, directors, employees, or agents for the
21purpose of carrying out their duties, to disclose electronic
22communication information associated with an electronic
23communication to or from an officer, director, employee, or agent
24of the entity.

25

1546.2.  

(a) Except as otherwise provided in this section, any
26government entity that executes abegin delete warrant or wiretap order or
27obtainsend delete
begin insert warrant, or requestsend insert electronic information in an
28emergency pursuant to Sectionbegin delete 1546.1end deletebegin insert 1546.1,end insert shall
29contemporaneously serve upon, or deliverbegin insert toend insert by registered or
30first-class mail, electronic mail, or other means reasonably
31calculated to be effective, the identified targets of thebegin delete warrant,
32order,end delete
begin insert warrantend insert or emergency request, a notice that informs the
33recipient that information about the recipient has been compelled
34or requested, and states with reasonable specificity the nature of
35the government investigation under which the information is
36sought. The notice shall include a copy of the warrantbegin delete or order,end delete or
37a written statement setting forth facts giving rise to the emergency.

begin delete

38(b) If there is no identified target of a warrant, wiretap order,
39or emergency request or access at the time of its issuance, the
40government entity shall submit to the Department of Justice within
P8    172 hours a report that states with reasonable specificity the nature
2of the government investigation under which the information was
3sought and includes a copy of the warrant, or order, or a written
4statement setting forth facts giving rise to the emergency. The
5Department of Justice shall publish each report received pursuant
6to this subdivision on its Internet Web site within 90 days of
7receiving the report.

end delete
begin delete

8(c) (1) When a wiretap order or search

end delete

9begin insert(b)end insertbegin insertend insertbegin insert(1)end insertbegin insertend insertbegin insertWhen aend insert warrant is sought under Section 1546.1, the
10government entity may submit a request supported by a sworn
11affidavit for an order delaying notification and prohibiting any
12party providing information from notifying any other party that
13information has been sought. The court shall issue the order if the
14court determines that there is reason to believe that notification
15may have an adverse result, but only for the period of time that
16the court finds there is reason to believe that the notification may
17have that adverse result, and not to exceed 90 days.

18(2) The court may grant extensions of the delay of up to 90 days
19each on the same grounds as provided in paragraph (1).

20(3) Upon expiration of the period of delay of the notification,
21the government entity shall serve upon, or deliverbegin insert toend insert by registered
22or first-class mail, electronic mail, or other means reasonably
23calculated to be effective as specified by the court issuing the order
24authorizing delayed notification,begin delete each individual whose electronic
25information was acquired,end delete
begin insert the identified targets of the warrant,end insert a
26document that includes the information described in subdivision
27(a), a copy of all electronic information obtained or a summary of
28that information, including, at a minimum, the number and types
29of records disclosed, the date and time when the earliest and latest
30records were created, and a statement of the grounds for the court’s
31determination to grant a delay in notifying the individual.

begin insert

32(c) If there is no identified target of a warrant or emergency
33request at the time of its issuance, the government entity shall
34submit to the Department of Justice within three days of the
35execution of the warrant or issuance of the request all of the
36information required in subdivision (a). If an order delaying notice
37is obtained pursuant to subdivision (b), the government entity shall
38submit to the department upon the expiration of the period of delay
39of the notification all of the information required in paragraph (3)
P9    1of subdivision (b). The department shall publish all those reports
2on its Internet Web site within 90 days of receipt.

end insert

3(d) Except as otherwise provided in this section, nothing in this
4chapter shall prohibit or limit a service provider or any other party
5from disclosing information about any request or demand for
6electronic information.

7

1546.4.  

(a) Except as proof of a violation of this chapter, no
8evidence obtained or retained in violation of this chapter shall be
9admissible in a criminal, civil, or administrative proceeding, or
10used in an affidavit in an effort to obtain a search warrant or court
11order.

12(b) The Attorney General may commence a civil action to
13compel any government entity to comply with the provisions of
14this chapter.

15(c) An individual whose information is targeted by a warrant,
16begin delete wiretapend delete order, or other legal process that is inconsistent with this
17chapter, or the California Constitution or the United States
18Constitution, or a service provider or any other recipient of the
19 warrant,begin delete wiretapend delete order, or other legal process may petition the
20issuing court to void or modify the warrant,begin delete wiretapend delete order, or
21process, or to order the destruction of any information obtained in
22violation of this chapter,begin insert orend insert the California Constitution, or the
23United States Constitution.

24(d) A California or foreign corporation, and its officers,
25employees, and agents, are not subject to any cause of action for
26providing records, information, facilities, or assistance in
27accordance with the terms of a warrant, court order, statutory
28authorization, emergency certification, or wiretap order issued
29pursuant to this chapter.



O

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