BILL NUMBER: SB 178 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 9, 2015
PASSED THE ASSEMBLY SEPTEMBER 8, 2015
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
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, 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, 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, order for electronic reader records, or subpoena
issued pursuant under specified conditions, except for emergency
situations, as defined. 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. 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.
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.
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.
(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.
(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.
(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.
(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.
(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. The department may
redact names or other personal identifying information from the
reports.
(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.