BILL NUMBER: SB 178 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 28, 2015
AMENDED IN ASSEMBLY AUGUST 17, 2015
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
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,
wiretap order, or order for electronic reader records, 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 describe with particularity
the information to be seized and would impose other conditions
on the use of the search warrant or wiretap order and the information
obtained, including retention retention,
sealing, and disclosure. The bill would require a warrant
directed to a service provider to be accompanied by an order
requiring the service provider to verify by affidavit the
authenticity of electronic information that it produces, as
specified. The bill would authorize a service provider to voluntarily
disclose, when not otherwise prohibited by state or federal law,
electronic communication informati on or subscriber
information, and would require a government entity to destroy
information so provided within 90 days, subject to specified
exceptions. The bill would, subject to exceptions, require a
government entity that executes a search warrant 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 statement describing the emergency under
which the notice was delayed. The bill would provide that any person
in a trial, hearing, or proceeding may move to suppress any
electronic information obtained or retained in violation of its
provisions, according to specified procedures. 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 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.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
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 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" means consent provided directly to the
government entity seeking information, including, but not limited to,
when the government entity is the addressee or intended recipient
or a member of the intended audience of an electronic
communication.
(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 other than the authorized
possessor of the device.
(3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
This section does not prohibit the intended recipient of an
electronic communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.
(b) A government entity may compel the production of or access to
electronic communication information from a service provider, or
compel the production of or access to electronic device information
from any person or entity other than the authorized possessor of the
device only under the following circumstances:
(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.
(3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code.
(c) A government entity may access electronic device information
by means of physical interaction or electronic communication with the
device only as follows:
(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.
(3) With the specific consent of the authorized possessor of the
device.
(4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.
(5) 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.
(6) 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 for electronic information shall comply with the
following:
(1) The warrant shall be limited to only that information
necessary to achieve the objective of the warrant,
describe with particularity the information to be seized by
specifying the time periods covered and, as appropriate and
reasonable, the target individuals or accounts, the applications or
services covered, and the types of information sought.
(2) The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and not subject to further
review, use, or disclosure without a court order. A court shall issue
such an order upon a finding that there is probable cause to believe
that the information is relevant to an active investigation, or
review, use, or disclosure is required by state or federal law.
(2)
(3) The warrant 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. If directed to a service provider, the warrant shall
be accompanied by an order requiring the service provider to verify
the authenticity of electronic information that it produces by
providing an affidavit that complies with the requirements set forth
in Section 1561 of the Evidence Code. Admission of that information
into evidence shall be subject to Section 1562 of the Evidence Code.
(e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
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. the termination of the current
investigation and any related investigations or proceedings.
(f) A service provider may disclose, but shall not be
required to disclose, voluntarily 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 destroy that information within 90 days unless the
one or more of the following circumstances apply:
(1) The entity has or obtains the
specific consent of the sender or recipient of the electronic
communications about which information was disclosed or
disclosed.
(2) The entity 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.
(3) The entity reasonably believes that the information relates to
child pornography and the information is retained as part of a
multiagency database used in the investigation of child pornography
and related crimes.
(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 an
application for a warrant or order authorizing obtaining the
electronic information or a motion seeking approval of the emergency
disclosures that shall set forth the facts giving rise to the
emergency. emergency, and if applicable, a
request supported by a sworn affidavit for an order delaying
notification under paragraph (1) of subdivision (b) of Section
1546.2. The court shall promptly rule on the application or
motion and shall order the immediate destruction of all information
obtained, and immediate notification pursuant to subdivision (a)
of Section 1546.2 if such notice has not already been given,
upon a finding that the facts did not give rise to an emergency or
upon rejecting the warrant or order application on any other ground.
(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 any 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.
(3) Require a service provider to provide subscriber information.
1546.2. (a) Except as otherwise provided in this section, any
government entity that executes a warrant, or requests
obtains electronic information in an emergency
pursuant to Section 1546.1, shall contemporaneously
serve upon, or deliver to by registered or first-class
mail, electronic mail, or other means reasonably calculated to be
effective, the identified targets of the warrant 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 a written statement setting forth facts giving
rise to the emergency. The notice shal l be provided
contemporaneously with the execution of a warrant, or, in the case
of an emergency, within three days after obtaining the electronic
information.
(b) (1) When a warrant is sought or electronic information is
obtained in an emergency 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 to 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, the identified targets of the
warrant, 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.
(c) If there is no identified target of a warrant or emergency
request at the time of its issuance, the government entity shall
submit to the Department of Justice within three days of the
execution of the warrant or issuance of the request all of the
information required in subdivision (a). If an order delaying notice
is obtained pursuant to subdivision (b), the government entity shall
submit to the department upon the expiration of the period of delay
of the notification all of the information required in paragraph (3)
of subdivision (b). The department shall publish all those reports on
its Internet Web site within 90 days of receipt.
(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) Any person in a trial, hearing, or proceeding may
move to suppress any electronic information obtained or retained in
violation of the Fourth Amendment to the United States Constitution
or of this chapter. The motion shall be made, determined, and be
subject to review in accordance with the procedures set forth in
subdivisions (b) to (q), inclusive, of Section 1538.5.
(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,
order, or other legal process that is inconsistent with this chapter,
or the California Constitution or the United States Constitution, or
a service provider or any other recipient of the warrant, order, or
other legal process may petition the issuing court to void or modify
the warrant, order, or process, or to order the destruction of any
information obtained in violation of this chapter, or 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.