BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 178        Hearing Date:    March 24, 2015    
          
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          |Author:    |Leno                                                 |
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          |Version:   |March 16, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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           Subject:  Privacy: Electronic Communications: Search Warrants 



          HISTORY

          Source:   American Civil Liberties Union and California  
                    Newspaper Publishers Association

          Prior Legislation:SB 467 (Leno) - Vetoed (2013) 
                         SB 914 (Leno) - Vetoed (2012)
                         SB 1434 (Leno) - Vetoed (2012)
                         SB 662 (Figueroa) - Chapter 896, Stats. 1999
                         
          Support:  Adobe; Apple Inc.; Asian Americans Advancing Justice;  
                    California Attorneys for Criminal Justice; The  
                    California Chapter of the Council on American-Islamic  
                    Relations; California Immigrant Policy Center;  
                    California Library Association; California Public  
                    Defenders Association; Consumer Action; Consumer  
                    Federation of California; Electronic Frontier  
                    Foundation; Engine; Facebook; Foursquare; Google; The  
                    Internet Archive; Internet Association; LinkedIn;  
                    Media Alliance; Mozilla; Namecheap, Inc.; National  
                    Center for Lesbian Rights; Open Technology Institute;  
                    Privacy Rights Clearinghouse; Restore the Fourth Bay  
                    Area Chapter; Small Business California; Twitter;  








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                    TechFreedom; TURN

          Opposition:California District Attorneys Association; California  
                    State Sheriffs' Association


                                       PURPOSE

          The purpose of this bill is to require a search warrant or  
          wiretap order for access to all aspects of electronic  
          communications except where federal law allows voluntary  
          disclosure.

          The US Constitution provides that "the right of the people to be  
          secure in their persons, houses, papers, and effects, against  
          unreasonable searches and seizures, shall not be violated, and  
          no Warrants shall issue, but upon probable cause, supported by  
          Oath or affirmation, and particularly describing the place to be  
          searched an the persons or things to be seized." (4th Amendment  
          of the U.S. Constitution.)

          The California Constitution provides that "the right of the  
          people to be secure in their persons, houses, papers and effects  
          against unreasonable seizures and searches may not be violated;  
          and a warrant may not issue except on probable cause, supported  
          by oath or affirmation, particularly describing the place to be  
          searched and the persons and things to be seized." (Article I,  
          Section 13 of the California Constitution.)

          Existing law defines a "search warrant" as an order in writing  
          in the name of the People, signed by a magistrate, directed to a  
          peace officer, commanding him or her to search for a person or  
          persons, a thing or things, or personal property, and in the  
          case of a thing or things or personal property, bring the same  
          before the magistrate.  (Penal Code § 1523.)

          Existing law provides that a search warrant may be issued upon  
          any of the following grounds:

                a)  When the property was stolen or embezzled;

                b)  When the property or things were used as the means of  
          committing a felony;








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                 c)  When the property or things are in the possession of  
                any person with the intent to use them as a means of  
                committing a public offense, or in the possession of  
                another to whom he or she may have delivered them for the  
                purpose of concealing them or preventing them from being  
                discovered;

                d)  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;

                e)  When the property or things to be seized consist of  
                evidence that tends to show that    sexual exploitation of  
                a child, or possession of matter depicting sexual conduct  
                of a person under the age of 18 years, has occurred or is  
                occurring;

                       f)  When there is a warrant to arrest a person;

                       g)  When a provider of electronic communication  
          service or remote computing service   
                has records or evidence, showing that property was stolen  
                or embezzled constituting a         misdemeanor, or that  
                property or things are in the possession of any person  
                with the intent to use them as a means of committing a  
                misdemeanor public offense, or in the possession of  
                another to whom he or she may have delivered them for the  
                purpose of concealing them or preventing their discovery; 

                h)  When the property to be seized includes evidence of a  
                violation of specified Labor Code sections;

                 i)  When the property to be seized includes a firearm or  
               deadly weapon or any other      
                deadly weapon at the scene of a domestic violence offense;

                j)  When the property to be seized includes a firearm or  
                deadly weapon owned by a person apprehended because of his  
                or her mental condition;

                k)  When the property to be seized is a firearm in  








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                possession of a person prohibited under the family code;



                l)  When the information to be received from the use of a  
                tracking device under shows a specified violation of the  
                Fish and Game Code or Public Resources Code;

                m)  When a sample of blood would show evidence of a DUI;  
                or,

                n)  Starting January 1, 2016, when the property to be  
                seized is a firearm owned by a person subject to a gun  
                violence restraining order. (Penal Code § 1524(a).)
           
          Existing law sets forth procedures for a search warrant issued  
          for records of a foreign corporation that provides electronic  
          communication services or remote computing services to the  
          general public, where those records would reveal the identity of  
          the customers using services, data stored by, or on behalf of,  
          the customer, the customer's usage of those services, the  
          recipient or destination of communications sent to or from those  
          customers, or the content of those communications. (Penal Code §  
          154.2)

          Existing law provides that a provider of electronic  
          communication or remote computing service shall disclose to a  
          governmental prosecuting or investigating agency the name,  
          address, local and long distance toll billing records, telephone  
          number or other subscriber number or identity, and length of  
          service of a subscriber to a customer of that service and types  
          of services the subscriber or customer utilized when the  
          governmental entity is granted a search warrant. (Penal Code §  
          1524.3(a))

          Existing law provides that a provider of wire or electronic  
          communication services or a remote computing service, upon the  
          request of a peace officer, shall take all necessary steps to  
          preserve records and other evidence in its possession pending  
          the issuance of a search warrant or a request in writing and an  
          affidavit declaring an intent to file a warrant to the provider.  
           Records shall be retained for a period of 90 days which shall  
          be extended for an additional 90-day upon a renewed request by  








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          the peace officer. (Penal Code § 1524.3(d))
           
           Exiting law provides that a search warrant cannot be issued but  
          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. (Penal Code § 1525.)

          Existing law authorizes the Attorney General, chief deputy  
          attorney general, chief assistant attorney general, district  
          attorney or the district attorney's designee to apply to the  
          presiding judge of the superior court for an order authorizing  
          the interception of wire or electronic communications under  
          specified circumstances.  (Penal Code §§ 629.50 et. seq.)

          This bill creates the Electronic Communications Privacy Act.

          This bill provides that except as otherwise provided a  
          government entity shall not do any of the following:

                 Compel the production of or access to electronic device  
               information from any person or entity except the authorized  
               processor of the device;
                 Compel the production of or access to electronic device  
               information from any person or entity except the authorized  
               processor of the device; or,
                 Access electronic device information by means of  
               physical interaction or electronic communication with the  
               device, except with the specific consent of the authorized  
               processor of the device.

          This bill provides that a government entity may compel the  
          production of or access to electronic communication information  
          or electronic communication with the device information by means  
          of physical interaction with the device only pursuant to a  
          wiretap order or pursuant to a search warrant provided that the  
          warrant shall not compel the production of or authorize access  
          to the contents of any electronic communication initiated after  
          the issuance of the warrant.

          This bill provides that a government entity may access  
          electronic device information by means of the physical  
          interaction or electronic communication with the device only as  








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          follows:

                 In accordance with a wiretap order or search warrant  
               issued pursuant to the appropriate Penal Code provision,  
               provided that a warrant shall not authorize accessing the  
               contents of any electronic communication initiated after  
               the issuance of the warrant;
                 With the specific consent of the owner or authorized  
               possessor of the device, when a government entity is the  
               intended recipient of an electronic communication initiated  
               by the owner or authorized possessor of the device;
                 With the specific consent of the owner of the device  
               when the device has been reported lost or stolen;
                 If the government entity, in good faith, believes that  
               an emergency involving imminent danger of death or serious  
               physical injury to any person requires access to the  
               electronic device information; and,
                 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.

          This bill provides that the warrant or order shall be limited to  
          only that information necessary to achieve the objective of the  
          warrant or wiretap order, including specifying the target  
          individuals or accounts, the applications or services, the types  
          of information, and the time periods covered.

          This bill provides the warrant or order shall identify the  
          effective date upon which the warrant is to be executed, not to  
          exceed 10 days from the date the warrant is signed, or  
          explicitly state whether the warrant or wiretap order  
          encompasses any information created after its issuance.

          This bill provides that the warrant or order shall comply with  
          all other provisions of California and federal law, including  
          any provision prohibiting, limiting or imposing additional  
          requirements on the use of search warrants or wiretap orders.

          This bill provides that when issuing any warrant or wiretap  
          order the court may do any of the following:









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                 Appoint a special master to ensure only information  
               necessary to achieve the objective of the warrant or order  
               is produced or accessed; or,
                 Require any information obtained through the execution  
               of the warrant or order that is unrelated be destroyed.

          This bill provides that a service provider may disclose, but is  
          not required to disclose, electronic communication information  
          or subscriber information when disclosure is not otherwise  
          prohibited by law.

          This bill provides that if a government entity receives  
          electronic communication without a warrant or order, it shall  
          delete the information within 90 days unless the entity has or  
          obtains the specific consent or the sender of the sender or  
          recipient about which the information was disclosed or obtains a  
          court order authorizing the retention of the information, and  
          specifies when the court shall order a retention order.

          This bill provides that if a government entity requests that a  
          service provider disclose information or if the government  
          entity obtains information involving the 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 seeking the disclosure, file with the court a  
          motion seeking approval of the requested emergency disclosures  
          and shall set forth the facts giving rise to the emergency.  If  
          the court finds the facts did not give rise to the emergency the  
          court shall order the information destroyed.

          This bill provides that it does not limit the authority of a  
          government to use administrative, grand jury, trial or civil  
          discovery subpoena to do either of the following:

                 Require an originator, addressee, or intended recipient  
               of an electronic communication to disclose any electronic  
               communication information associated with that  
               communication; or,
                 Require an entity that provides electronic  
               communications services to its officers, directors,  
               employees, or agents to disclose electronic communication  
               information associated with an electronic communication to  
               or from an officer, director, employee or agent of the  








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               entity.

          This bill provides that except as otherwise provided the  
          government entity that executes a warrant or wiretap order or  
          issues and emergency request shall contemporaneously notice the  
          identified targets that the 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.

          This bill provides that if there is no identified target of the  
          warrant or order or emergency request, the government shall take  
          reasonable steps to provide notice within three days to all  
          individuals about whom information was obtained.

          This bill provides that when a wire tap order or search warrant  
          is sought the government entity may submit a request supported  
          by an affidavit for an order delaying notification and  
          prohibiting any party from providing information or notifying  
          any party it is being sought.  If the court determines  
          notification may have an adverse impact the court may delay  
          notification for up to 90 days with subsequent extensions for 90  
          days.

          This bill provides that except as proof of a violation of this  
          chapter, no evidence obtained or retained in violation of this  
          chapter shall be admissible in a criminal, civil or  
          administrative proceeding or used in an affidavit in an effort  
          to obtain a search warrant or court order.

          This bill provides that the Attorney General may commence a  
          civil action to compel any government entity to comply with the  
          provisions of this bill.

          This bill provides that if a warrant or wiretap order does not  
          comply with this chapter, a service provider, or any other  
          recipient of the warrant or wiretap order, or any individual  
          whose information is target by the warrant or wiretap order, may  
          petition the court to void or modify the warrant or order the  
          destruction of any information obtained in violation of the  
          chapter.

          This bill requires a government entity that obtains electronic  








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          communication information to report annually to the Attorney  
          General specified information regarding any requests that the  
          entity made and requires the Attorney General to publish on  
          their website the information in a report.

          This bill defines electronic communication as 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.

          This bill defines electronic communication information as 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 but does not include subscriber information.

          This bill defines electronic communication service as a service  
          that provides 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.

          This bill defines electronic device as a device that stores,  
          generates, or transmits information in electronic form.

          This bill defines other appropriate terms.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   








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          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   



                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In its most recent status report to the court (February 2015),  
          the administration reported that as "of February 11, 2015,  
          112,993 inmates were housed in the State's 34 adult  
          institutions, which
          amounts to 136.6% of design bed capacity, and 8,828 inmates were  
          housed in out-of-state
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design
          bed capacity."( Defendants' February 2015 Status Report In  
          Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC,  
          3-Judge Court,  Coleman v. Brown  ,  Plata v. Brown  (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
           Coleman v. Brown ,  Plata v. Brown  (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  








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               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          
             1.   Need for This Bill

          According to the author:

               SB 178 updates California law to properly safeguard  
               the robust constitutional privacy and free speech  
               rights of Californians, spur innovation, and support  
               public safety by instituting clear warrant standards  
               for government access to electronic information. 

               Californians must use technology every day to connect,  
               work, and learn.  The state's leading technology  
               companies rely on consumer confidence in their  
               services to help power California's economy.  
               California law enforcement increasingly utilizes  
                                                                                   electronic information to protect public safety. The  
               California legislature has long been a leader in  
               enacting laws to properly balance the rights of  
               Californians as technology advances. But California's  
               statutory protections for electronic information is  
               now very outdated. 


               SB 178 updates existing federal and California  
               statutory law for the digital age and codifies federal  
               and state constitutional rights to privacy and free  
               speech by instituting a clear, uniform warrant rule  
               for California law enforcement access to electronic  
               information, including data from personal electronic  
               devices, emails, digital documents, text messages,  
               metadata, and location information. Each of these  
               categories can reveal sensitive information about a  
               Californian's personal life: her friends and  
               associates, her physical and mental health, her  










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               religious and political beliefs, and more.<1> The  
               California Supreme Court has long held that this type  
               of information constitutes a "virtual current  
               biography" that merits constitutional protection. SB  
               178 would codify that protection into statute. SB 178  
               also ensures that proper notice, reporting, and  
               enforcement provisions are also updated and in place  
               for government access to electronic information and to  
               ensure that the law is followed. 

          2.  Search and Seizure Generally
           
          The 4th Amendment of the US Constitution and Article I, Section  
          13 of the California Constitution protect people against  
          unreasonable searches and seizures.  Generally, the lawfulness  
          of a search of the items in the arrestee's immediate control is  
          based upon the need to protect the officer and to discover  
          evidence in the case.   This has been found to include search of  
          items when a person is booked into jail on the theories that the  
          time lag is inconsequential;  it is less of an invasion than a  
          public search at the place of arrest; is necessary for inventory  
          purposes; and, can protect from contraband being brought into  
          the jail.   However, if the search is remote in time and the  
          property has been removed from the defendant's possession and is  
          in the control of the police, then a warrantless search has been  
          found not to be reasonable.  Numerous cases have looked at this  
          issue of when a search incident to arrest is valid.  (See for  
          example:  U.S v. Robinson (1973) 414 U.S. 218; U.S. V. Edwards  
          (1974) 415 U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v.  
          Belton  (1981) 453 U.S. 454;  People v. Hamilton (1988) 46 C. 3d  
          123) ) After Proposition 8 (June 1982), in California, the scope  
          of a search incident to arrest is based on federal law; thus,  
          California courts will look to the federal courts for precedent  
          when deciding a case.
          
          3.  Wiretap Generally

          The United States Supreme Court ruled in Katz v. United States  
          (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576, that  
          telephone conversations were protected by the Fourth Amendment  
          to the United States Constitution.  Intercepting a conversation  
          is a search and seizure similar to the search of a citizen's  

          ---------------------------
               <1>







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          home.  Thus, law enforcement is constitutionally required to  
          obtain a warrant based on probable cause and to give notice and  
          inventory of the search.
          
          In 1968, Congress authorized wiretapping by enacting Title III  
          of the Omnibus Crime Control and Safe Streets Act. (See 18 USC  
          Section 2510 et seq.)  Out of concern that telephonic  
          interceptions do not limit the search and seizure to only the  
          party named in the warrant, federal law prohibits electronic  
          surveillance except under carefully defined circumstances.  The  
          procedural steps provided in the Act require "strict adherence."  
           (United States v. Kalustian, 529 F.2d 585, 588 (9th Cir.  
          1976)), and "utmost scrutiny must be exercised to determine  
          whether wiretap orders conform to Title III.")
          
          Both Federal and California law requires that each wiretap  
          application include "a full and complete statement as to whether  
          or not other investigative procedures have been tried and failed  
          or why they reasonably appear to be unlikely to succeed if tried  
          or to be too dangerous."  (18 USC Section 2518 (1)(c); Penal  
          Code Section 629.50(d).)  Often referred to as the "necessity  
          requirement," it exists in order to limit the use of wiretaps,  
          which are highly intrusive.  (United States v. Bennett, 219 F.3d  
          1117, 1121 (9th Cir. 2000).)  The original intent of Congress in  
          enacting such a provision was to ensure that wiretapping was not  
          resorted to in situations where traditional investigative  
          techniques would suffice to expose the crime.

          4.  Recent Supreme Court Cases
          
          The fact that Fourth Amendment protections extends to electronic  
          information has been recently affirmed by the United States  
          Supreme Court.  

          In United States v. Riley, 134 S. Ct. 2473 (2014) involved two  
          cases. In the first case, the defendant (Riley) was stopped for  
          a traffic violation which lead to his arrest on a misdemeanor  
          firearms charge.  In the search incident to his arrest the  
          officer searched his phone and noticed terminology related to  
          gangs. The phone was further searched at the police station and  
          photos and videos on the phone lead to Riley being charged in  
          connection with a shooting and the phone evidence being used to  
          claim a gang enhancement.  In the second case, as a result of  








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          his cell phone being searched the defendant's apartment was  
          searched and guns and drugs were found after he was arrested  
          during a drug sale. "These cases require us to decide how the  
          search incident to arrest doctrine applies to modern cell  
          phones, which are now such a pervasive and insistent part of  
          daily life that the proverbial visitor from Mars might conclude  
          they were an important feature of human anatomy. A smart phone  
          of the sort taken from Riley was unheard of ten years ago; a  
          significant majority of American adults now own such phones."  
          (Id. at 2484. )  The Supreme Court refused to apply to cell  
          phone searches the precedents established for the searches of  
          purses and wallets because "that would be like saying a ride on  
          horseback is materially indistinguishable from a flight to the  
          moon." (Id. at 2488.)  Recognizing that modern cell phones'  
          storage capacity and multi-functionality allow them to contain  
          "the privacies of life," the Court required law enforcement to  
          "get a warrant" for cell phone searches. (Id. at 2495.)   

          In  the case of U.S. v. Jones (132 S.Ct. 945(2012)), the court  
          found that the government's attachment of a GPS device to a  
          vehicle and its use of that device to monitor the vehicle's  
          movements constituted a search warrant under the 4th Amendment.   
          In Jones, all members of the Court found that the law  
          enforcement's attachment and subsequent monitoring of a GPS on a  
          vehicle violated the 4th Amendment, although with two concurring  
          opinions, various judges reached that conclusion using different  
          legal reasoning.

          In Jones, the United States Supreme Court held that attaching a  
          global positioning system (GPS) device to a person's vehicle to  
          track his or her movements constitutes a search within the  
          meaning of the Fourth Amendment.  Authorities obtained a search  
          warrant to install a GPS device on defendant's car as part of a  
          drug trafficking investigation. But, the authorities did not  
          install the device until after the warrant expired.  The device  
          was used to track the defendant's movements for almost one  
          month.  When charges were filed against defendant, he moved to  
          suppress the GPS evidence as the product of an illegal search.   
          The prosecution argued at trial and on appeal that a search  
          within the meaning of the Fourth Amendment had not occurred 


          because Jones did not have a reasonable expectation of privacy  








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          in the location of his vehicle on public streets, which was  
          visible to all.  

          The Supreme Court found the government's use of a GPS monitoring  
          device was a search within the meaning of the Fourth Amendment,  
          and therefore must be reasonable.  The majority decision was not  
          based on the reasonable expectation of privacy test for  
          challenges to law enforcement surveillance, which is generally  
          employed.  (Katz v. U.S. (1967) 389 U.S. 347.)  Instead, the  
          majority based its decision on common law trespass principals,  
          holding that attaching a GPS device to a vehicle (an "effect")  
          for purposes of data collection constitutes a search because the  
          government physically occupied private property for the purpose  
          of information gathering.  But five of the justices (the four  
          members of the Alito concurrence, plus Justice Sotomayor) were  
          critical of the trespass theory, stating the majority should  
          have used the reasonable expectation of privacy test.

          5.  Warrant or Wiretap for Access to Electronic  
          Communication or Device Information
          
          Unless a search warrant or wiretap order is obtained, this  
          bill would prohibit a government entity from: compelling the  
          production of or access to  electronic communications from  
          an information service provider; compelling the production  
          of or access to electronic device information from any  
          person or entity except the authorized possessor of the  
          device; or, accessing electronic device information by means  
          of physical interaction or electronic communication with the  
          device except with the specific consent of the authorized  
          user.

          Exceptions exist to the warrant requirement including  
          consent of the owner of a device and when the government in  
          good faith believes that an emergency involving imminent  
          danger of death or serious physical injury requires access  
          to the electronic device information or the entity  
          reasonably believes the device is stolen.

          If the government agency obtains information without a  
          warrant or order because of an emergency the entity must  
          within three days file a court motion seeking court approval  
          of the requested emergency disclosures.








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          6. Notice to Consumer

          The bill requires notice to the targets of warrant or  
          wiretap contemporaneously with the execution of the warrant  
          unless a court ordered delay of notice is granted for a  
          renewable period up to 90 days.

          7. Destruction of Information Obtained Voluntarily

          If the government entity obtains electronic information  
          voluntarily, this bill requires that the information be  
          deleted in 90 days, unless the obtainer receives specific  
          consent or obtains a court order to retain the information.   
          The 90 day destruction requirement does not apply to  
          information obtained by a warrant or wiretap.




          8.  Does not Apply to Internal Communications of a Provider

          This bill provides that administrative subpoenas can still  
          be used in an administrative, grand jury or civil discovery  
          situation when it involves internal emails within a company.  
            Thus, for example, in a civil action against an employer  
          who also happens to be a service provider under this bill,  
          emails between the plaintiff and the defendant or other  
          information would be subject to a civil subpoena.

          9.  DOJ Report

          This bill requires government entities that seek information  
          under this bill to report specified information yearly to the  
          Attorney General and requires the Attorney General to publish a  
          report on that information on their website.  This is similar to  
          information that must be reported when a jurisdiction uses a  
          wiretap.

          10. Support

          California Newspaper Publishers Association, a co-sponsor of  
          this bill, states:








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               The threat of law enforcement obtaining protected,  
               personal information from third parties without a  
               warrant presents serious problems for newspaper  
               publishers, editors and working journalists.   
               California has unique protections that allow  
               publishers, editors, and working journalists to  
               maintain sensitive source information and unpublished  
               notes without being subject to routine access by law  
               enforcement and litigants.

          Twitter supports this bill, stating:

               Current federal law that extends fourth amendment  
               right to electronic communications is nearly 30 years  
               out of date.  As technology and the nature of data  
               transmission and storage has changed, the protections  
               afforded by the Federal ECPA law has largely lapsed.   
               Although there is broad support to ECPA reform in  
               Washington, it is unclear if Congress will act in  
               timely fashion to clarify Federal law. This leaves the  
               responsibility of protecting consumer's rights in the  
               hands of private communication service providers.

               SB 178 will modernize electronic communications  
               protections and ensure that, in California, an  
               individual's digital property cannot be seized without  
               a warrant.  By acting in a timely fashion, SB 178 will  
               set a standard for protecting the rights of users  
               everywhere that can and should be replicated across  
               the country.

          Privacy Rights Clearinghouse states in support of this bill:

               SB 178 follows the spirit of Riley and extends the  
               warrant requirements to digital information that  
               reveals personal and sensitive details about who we  
               are, whom we communicate and associate with, and where  
               we've been.  While law enforcement will still be able  
               to obtain this information and utilize it to solve  
               crimes, SB 178 provides needed oversight by requiring  
               law enforcement obtain a search warrant in order to  
               access this wealth of information.  The bill contains  








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               reasonable exceptions that allow law enforcement to  
               obtain digital information without a warrant in an  
               emergency.

          11. Opposition

          The California District Attorneys Association opposes this bill,  
          stating:

               This bill, the Electronic Communications Privacy Act,  
               would establish a number of new procedures and  
               reporting requirements for law enforcement agencies to  
               comply with when seeking a search warrant for  
               electronic communications.  Unfortunately, in doing  
               so, it undermines critical efforts to stop child  
               exploitation, mandates the destruction of evidence by  
               law enforcement, and violates the California  
               Constitution.

          The California State Sheriffs' Association opposes this bill,  
          stating:

               This measure has a myriad of problems: it conflates  
               existing procedures for obtaining certain electronic  
               information under state and federal law, contains  
               burdensome and unnecessary reporting requirements, and  
               will undermine investigations that are fully compliant  
               with the Fourth Amendment.



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