BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 178|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 178
Author: Leno (D) and Anderson (R) et.al.
Amended: 6/2/15
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 3/24/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Privacy: electronic communications: search warrant
SOURCE: American Civil Liberties Union
California Newspaper Publishers Association
DIGEST: This bill requires a search warrant or wiretap order
for access to all aspects of electronic communications except
where federal law allows voluntary disclosure.
ANALYSIS:
Existing law:
1)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
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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.)
2)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.)
3)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.)
4)Provides that a search warrant may be issued only upon
specified grounds. (Penal Code § 1524(a).)
5)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)
6)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))
7)Provides that a provider of wire or electronic communication
services or a remote computing service, upon the request of a
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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 the peace officer. (Penal Code § 1524.3(d))
8)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.)
9)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:
1) Creates the Electronic Communications Privacy Act.
2) 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.
1) Provides that a government entity may compel the
production of or access to electronic communication
information or electronic communication with the device
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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.
2) Provides that a government entity may access electronic
device information by means of the physical interaction or
electronic communication with the device only as 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.
1) 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.
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2) Provides that 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.
3) 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.
4) Provides that when issuing any warrant or wiretap order
the court may do any of the following:
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.
1) 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.
2) 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.
3) 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
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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.
4) 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 entity.
1) 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.
2) 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.
3) 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.
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4) Provides that the Attorney General may commence a civil
action to compel any government entity to comply with the
provisions of this bill.
5) 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.
6) 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.
7) 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.
8) Defines electronic device as a device that stores,
generates, or transmits information in electronic form.
Background
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
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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.
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 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
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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.
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
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 global positioning
system (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.
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In Jones, the United States Supreme Court held that attaching a
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 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.
Comments
Unless a search warrant or wiretap order is obtained, this
bill prohibits 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.
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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.
This bill further 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee analysis:
Noticing requirements: Ongoing potentially significant costs
to state and local law enforcement agencies for those noticing
provisions in the bill that exceed requirements under federal
law. To the extent local agency expenditures qualify as a
reimbursable state mandate, agencies could claim reimbursement
of those costs (General Fund). Costs would be dependent on
various factors including but not limited to the number of
persons requiring notice, both contemporaneously and under the
delayed noticing provisions, time/workload required per
notice, and the method of noticing used.
Information deletion: Unknown, but potentially significant
costs to government entities for the required deletion of
information within the specified time period. To the extent
local agency expenditures qualify as a reimbursable state
mandate, agencies could claim reimbursement of those costs
(General Fund).
DOJ impact: Significant ongoing costs potentially in excess
of $300,000 (General Fund) for resources to meet the noticing
requirements of the bill. Minor, absorbable impact to
aggregate and post annual reports received to its website.
SUPPORT: (5/31/15)
American Civil Liberties Union (co-source)
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California Newspaper Publishers Association (co-source)
Adobe
Airbnb
Apple Inc.
Asian Americans Advancing Justice
Bay Area Civil Liberties Coalition
California Attorneys for Criminal Justice
California Chamber of Commerce
The California Chapter of the Council on American-Islamic
Relations
California Correctional Peace Officers Association
California Immigrant Policy Center
California Library Association
California Public Defenders Association
Center for Democracy and Technology
Center for Media Justice
Centro Legal de la Raza
Citizens for Criminal Justice Reform
Civil Justice Association of California
Color of Change
Consumer Action
Consumer Federation of California
Council on American-Islamic Relations
Dropbox
Drug Policy Alliance
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Engine
Facebook
Foursquare
Google
The Internet Archive
Internet Association
Legal Services for Prisoners with Children
LinkedIn
Media Alliance
Microsoft
Mozilla
Namecheap, Inc.
National Center for Lesbian Rights
New America: Open Technology Institute
Oakland Privacy Working Group
Privacy Rights Clearinghouse
Restore the Fourth Bay Area Chapter
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Small Business California
Twitter
TechFreedom
Technet
TURN (the Utility Reform Network)
Sixteen law professors.
OPPOSITION: (5/31/15)
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs Associaiton
ARGUMENTS IN SUPPORT:
In support California Newspaper Publishers Association, a
co-source of this bill, states:
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.
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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
reasonable exceptions that allow law enforcement to
obtain digital information without a warrant in an
emergency.
ARGUMENTS IN 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
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information under state and federal law, contains
burdensome and unnecessary reporting requirements, and
will undermine investigations that are fully compliant
with the Fourth Amendment.
Prepared by:Mary Kennedy / PUB. S. /
6/2/15 21:27:02
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