Amended in Assembly September 4, 2015

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

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, begin delete Dahle, end delete 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, begin delete or end delete order for electronic reader records, begin insert or subpoena issued pursuant under specified conditions, end insert except for emergency situations, as defined. begin insert The bill would also specify the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device. end insert 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 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, 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 information 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) 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. begin insert Specific consent does not require that the
originator of the communication have actual knowledge that an
addressee, intended recipient, or member of the specific audience
is a government entity. end insert

(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.

begin insert

(4) Pursuant to a subpoena issued pursuant to existing state
law, provided that the information is not sought for the purpose
of investigating or prosecuting a criminal offense, and compelling
the production of or access to the information via the subpoena is
not otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any authority under state
law to compel the production of or access to electronic information.

end insert

(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.

begin insert

(7) Except where prohibited by state or federal law, if the device
is seized from an inmate’s possession or found in an area of a
correctional facility under the jurisdiction of the Department of
Corrections and Rehabilitation where inmates have access and
the device is not in the possession of an individual and the device
is not known or believed to be the possession of an authorized
visitor. Nothing in this paragraph shall be construed to supersede
or override Section 4576.

end insert

(d) Any warrant for electronic information shall comply with
the following:

(1) The warrant shall 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.

(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 the termination of
the current investigation and any related investigations or
proceedings.

(f) A service provider may 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 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.

(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, 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 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 obtains electronic
information in an emergency pursuant to Section 1546.1, shall
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 shall 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. begin insert The department
may redact names or other personal identifying information from
the reports. end insert

(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.