BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   June 23, 2015


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                  Mike Gatto, Chair


          SB  
          178 (Leno) - As Amended June 2, 2015


          SENATE VOTE:  39-0


          SUBJECT:  Privacy: electronic communications: search warrant.


          SUMMARY:  Creates the California Electronic Communications  
          Privacy Act (CalECPA), which generally requires law enforcement  
          entities to obtain a search warrant before accessing data on an  
          electronic device or from an online service provider.   
          Specifically, this bill:  


          1)Prohibits a government entity from:

               a)     Compelling the production of or access to electronic  
                 communication information from a service provider.

               b)     Compelling the production of or access to electronic  
                 device information from any person or entity except the  
                 authorized possessor of the device.

               c)     Accessing electronic device information by means of  
                 physical interaction or electronic communication with the  
                 device.









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          2)Permits a government entity to compel the production of or  
            access to electronic information subject to a warrant or  
            wiretap order, as specified, 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. 

          3)Permits a government entity to access electronic device  
            information by means of physical interaction or electronic  
            communication with the device only as follows:

               a)     In accordance with a wiretap order or in accordance  
                 with a search warrant, as specified, provided that a  
                 warrant shall not authorize accessing the contents of any  
                 electronic communication initiated after the issuance of  
                 the warrant.

               b)     With the specific consent of the authorized  
                 possessor of the device, including when a government  
                 entity is the intended recipient of an electronic  
                 communication initiated by the authorized possessor of  
                 the device.

               c)     With the specific consent of the owner of the  
                 device, only when the device has been reported as lost or  
                 stolen.

               d)     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.

               e)     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.

          4)Requires any warrant or wiretap order for electronic  








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            information to comply with the following:

               a)     The warrant or order shall be limited to only that  
                 information necessary to achieve the objective of the  
                 warrant or wiretap order, including by specifying the  
                 target individuals or accounts, the applications or  
                 services, the types of information, and the time periods  
                 covered, as appropriate.
                  
               b)     The warrant or order shall identify the effective  
                 date upon which the warrant or order 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.

               c)     The warrant or order 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 or wiretap  
                 orders.

          5)When issuing any warrant or wiretap order for electronic  
            information, or upon the petition from the target or recipient  
            of the warrant or wiretap order, a court may, at its  
            discretion, do any or all of the following:

               a)     Appoint a special master, who is charged with  
                 ensuring that only information necessary to achieve the  
                 objective of the warrant or order is produced or  
                 accessed. 

               b)     Require that any information obtained through the  
                 execution of the warrant or order that is unrelated to  
                 the objective of the warrant be destroyed as soon as  
                 feasible after that determination is made.

          6)Authorizes, but does not require, a service provider to  
            disclose electronic communication information or subscriber  








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            information when that disclosure is not otherwise prohibited  
            by state or federal law.

          7)Requires a government entity that receives electronic  
            communication information voluntarily provided by a service  
            provider to delete that information within 90 days unless the  
            entity has or obtains the specific consent of the sender or  
            recipient or obtains a court order, as specified. 

          8)Requires a government entity that obtains electronic  
            information pursuant to an emergency to seek approval, within  
            three days after obtaining the electronic information, from  
            the appropriate court, as specified.   

          9)Declares that certain of these provisions (#1 through #8) do  
            not limit the authority of a government entity to use an  
            administrative, grand jury, trial, or civil discovery subpoena  
            to do either of the following:

               a)     Require an originator, addressee, or intended  
                 recipient of an electronic communication to disclose any  
                 electronic communication information associated with that  
                 communication; or,

               b)     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.

          10)Requires a government entity that executes a warrant or  
            wiretap in an emergency pursuant to these provisions to  
            contemporaneously serve or deliver a notice to the identified  
            targets 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, including  








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            a copy of the warrant or order, or a written statement setting  
            forth facts giving rise to the emergency.

          11)Requires, if there is no identified target of a warrant,  
            wiretap order, or emergency request or access at the time of  
            its issuance, the government entity to submit to the  
            Department of Justice (DOJ) within 72 hours a report that  
            states the nature of the government investigation and a copy  
            of the warrant, or order, or a written statement.  Further  
            requires the DOJ to publish each report on its website within  
            90 days of receipt.

          12)Authorizes the government entity, when a wiretap order or  
            search warrant is sought, to 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.  Further  
            requires the court to issue the order if the court determines  
            that there is reason to believe that notification may have an  
            adverse result, not to exceed 90 days, and the court may grant  
            extensions of the delay of up to 90 days each, as specified.  

          13)Requires, upon expiration of the period of delay of the  
            notification, the government entity to serve or deliver to  
            each individual whose electronic information was acquired, a  
            document that includes the information required in #10 above,  
            as well as a copy of all electronic information obtained or a  
            summary of that information, and a statement of the grounds  
            for the court's determination to grant a delay in notifying  
            the individual, as specified.

          14)Declares that nothing in these provisions shall prohibit or  
            limit a service provider or any other party from disclosing  
            information about any request or demand for electronic  
            information, except as provided.

          15)Declares that no evidence obtained or retained in violation  
            of these provisions shall be admissible in a criminal, civil,  
            or administrative proceeding, or used in an affidavit in an  








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            effort to obtain a search warrant or court order, except as  
            proof of a violation of these provisions. 

          16)Authorizes the Attorney General to commence a civil action to  
            compel any government entity to comply with these provisions.

          17)Authorizes an individual whose information is targeted by a  
            warrant, wiretap order, or other legal process that is  
            inconsistent with these provisions, or the California  
            Constitution or the United States Constitution, or a service  
            provider or any other recipient of the warrant, wiretap order,  
            or other legal process, to petition the issuing court to void  
            or modify the warrant, wiretap order, or process, or to order  
            the destruction of any information obtained in violation of  
            this chapter, the California Constitution, or the United  
            States Constitution.

          18)Declares 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, court  
            order, statutory authorization, emergency certification, or  
            wiretap order issued pursuant to these provisions. 

          19)Defines the terms "adverse result," "authorized possessor,"  
            "electronic communication," "electronic communication  
            information," "electronic communication service," "electronic  
            device," "electronic device information," "electronic  
            information," "government entity," "service provider,"  
            "specific consent," and "subscriber information."

          EXISTING LAW:   



          1)Provides, pursuant to the U.S. Constitution, 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  








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            probable cause, supported by Oath or affirmation, and  
            particularly describing the place to be searched an the  
            persons or things to be seized." (U.S. Const. amend. IV)


          2)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 (PC) Section 1523)

          3)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. (PC  
            1524.2)

          4)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. (PC 1524.3(a))

          5)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  








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            renewed request by the peace officer. (PC 1524.3(d))
           
           6)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. (PC 1525)

          7)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.  (PC 629.50, et seq.)

          8)Provides, pursuant to the California Constitution and  
            attendant case law, that Californians do not forfeit their  
            reasonable expectation of privacy when they share their  
            information with a third party. (Burrows v. Superior Court, 13  
            Cal.3d 238 (1974) (recognizing expectation of privacy in bank  
            records under California Constitution even though United  
            States v. Miller, 425 U.S. 435 (1976) found none under Fourth  
            Amendment).



          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee: 



            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  








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            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.





          COMMENTS:  





           1)Purpose of this bill  .  This bill is intended to both codify  
            and expand on existing case law to generally require law  
            enforcement entities to obtain a search warrant before  
            accessing data on an electronic device or from an online  
            service provider.  SB 178 is co-sponsored by the Electronic  
            Frontier Foundation and the California Newspaper Publishers  
            Association. 



           2)Author's statement  .  According to the author's office, "SB 178  
            updates existing federal and California statutory law for the  








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            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 religious and political  
            beliefs, and more.  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." 
           
            3)What legal requirements and restrictions apply to government  
            searches  ?  As a starting point, the Fourth Amendment to the  
            United State Constitution (and Art. I, Sec. 13 of the  
            California Constitution) generally provide a right in their  
            property and privacy against unreasonable searches and  
            seizures, and a requirement that search warrants be specific  
            and based on probable cause (with some exceptions).  A search  
            occurs when the government impinges on an individual's  
            "reasonable expectation of privacy."  The rule is enforced in  
            part by excluding evidence from trial that was obtained in  
            violation of these requirements. 



            As communications technology evolved, Congress passed in 1986  
            the Electronic Communications Privacy Act to regulate  
            interception of electronic data and access of stored  
            electronic communications.  Unfortunately, technology  
            continued to advance rapidly since the Act's inception nearly  
            30 years ago and amendments to the Act have not always kept  








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            pace.



            The author contends that the federal statute "has not been  
            meaningfully updated to account for modern technology," and  
            quotes the U.S. DOJ as writing that there is "no principled  
            basis" for maintaining the outdated distinctions that allow  
            for warrantless access to older content and that the law draws  
            lines that "may have made sense in the past have failed to  
            keep up with the development of technology." 
            The author also cites a variety of situations where California  
            law already explicitly requires a warrant for many kinds of  
            information, including "any information sought by California  
            law enforcement held by a company outside of California; any  
            information sought by out of state law enforcement held by a  
            company inside of California; any personal information sought  
            from a provider of book services; non-content information  
            sought by California law enforcement in connection with a  
            misdemeanor property crime held by a California service  
            provider; and contents of communications or the information  
            obtained by a pen register sought from a utility in connection  
            with embezzlement and fraud investigations.  Both the federal  
            and California Wiretap Acts also require a 'super-warrant'  
            with additional protections to capture live communications."





            As a result, the author and supporters believe that existing  
            law is insufficient to protect all forms of electronic  
            communications and their meta-data, such personal emails  
            stored on a company's servers or mobile phone location data  
            held by carriers - information that is in great demand from  
            law enforcement. 











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           4)The growth in government requests for electronic data  .  As  
            evidence of the confusion around how certain kinds of  
            communications or data are protected by the Fourth Amendment,  
            the author and supporters contend that warrantless demands by  
            government agencies for personal information have increased  
            substantially in recent years.

          According to data provided by the author, "Google received over  
            12,500 requests from U.S. law enforcement in the first 6  
            months of 2014 alone, a 250 percent increase in just the past  
            five years.  Only around 25 percent of those requests were  
            warrants.  AT&T received over 64,000 demands for location  
            information in 2014, nearly 70% increase in a single year.   
            Verizon received over 15,000 demands for location data in the  
            first half of 2014, only 1/3 with a warrant.  Twitter and  
            Tumblr both received more demands from California law  
            enforcement than any other state."

          The large number of requests has likely not gone unnoticed by  
            consumers, as the author cites a Pew Research Center poll from  
            November 2014 which found that "70% of social networking site  
            users are concerned about government access and another recent  
            poll showed that only 7% trust email for secure  
            communications."  Consumer discontent related to the low level  
            of trust in privacy has also garnered the attention of the  
            tech industry, which the author says is "increasingly  
            concerned about loss of consumer trust and its business  
            impact, including potential losses in the billions of dollars  
            for California technology companies."

           5)Recent Supreme Court decisions on electronic communications  .   
            With this explosion in requests for electronic data by law  
            enforcement, long-standing questions about the level of  
            authorization required to conduct a search or intercept  
            communications are back in the spotlight.  Two major, recent  
                                 U.S. Supreme Court decisions are relevant to that discussion.   











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            In the case of U.S. v. Jones (132 S.Ct. 945 (2012)), the Court  
            ruled that the physical attachment of a global positioning  
            system (GPS) device to a car and monitoring its movements over  
            the course of a month as part of a drug trafficking  
            investigation required a search warrant under the Fourth  
            Amendment, although the reasoning differed between the  
            Justices.  This left open the question of whether government's  
            collection of geolocation data requires a warrant when there  
            is no physical invasion, such as getting GPS information from  
            a mobile phone company.  The Court even highlighted this  
            uncertainty, writing, "[i]t may be that achieving the same  
            result through electronic means, without an accompanying  
            trespass, is an unconstitutional invasion of privacy, but the  
            present case does not require us to answer that question."   
            Instead, Justice Alito appears to invite action by Congress  
            and the states, saying "a legislative body is well suited to  
            gauge changing public attitudes, to draw detailed lines, and  
            to balance privacy and public safety in a comprehensive way."

            A more recent case, Riley v. United States (134 S.Ct. 2473  
            (2014)), held that the Fourth Amendment requires a warrant  
            prior to searching digital information on a cellphone seized  
            during an arrest.  The Court found that searching an  
            individual's purse for evidence or a weapon during an arrest  
            is qualitatively different than searching someone's cellphone  
            in part because there is less danger of potential harm to an  
            officer or of evidence being destroyed, but there is also a  
            far greater danger to an individual's privacy because of the  
            vast quantities and distinct types of personal information  
            that can be stored on a phone.  In one widely quoted passage,  
            the Court wrote that treating the search of a purse like the  
            search of a cellphone "would be like saying a ride on  
            horseback is materially indistinguishable from a flight to the  
            moon."

            According to the author, SB 178 "codifies Riley and ensures  








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            that its protections extend to all electronic devices while  
            enumerating the exceptional circumstances where a warrant is  
            not required."  Similarly, it enshrines protection for  
            location data consistent with the decision in Jones.  The aim  
            is to create a "clear, uniform warrant rule for California law  
            enforcement access to electronic information."  

            Finally, as evidence of widespread legislative interest and  
            action on the topic, the author points to recent Congressional  
            hearings and pending bipartisan legislation to create a  
            uniform warrant requirement for stored communications access  
            by law enforcement.  The author also states that sixteen state  
            legislatures have enacted new electronic privacy legislation,  
            with ten states acting to protect geophysical location data  
            and six states protecting electronic communications content.

           6)This bill's impacts on privacy in practice  .  This bill aims to  
            codify and strengthen privacy protections under the California  
            Constitution in a number of ways.  First, it requires a  
            demonstration of probable cause to obtain electronic  
            communications information from a third party service  
            provider, responding to a high percentage of legally  
            inadequate requests from law enforcement.  It also applies the  
            probable cause requirement to past electronic communications,  
            regardless of their age, which is an improvement over federal  
            law.  SB 178 also guarantees that geolocation information is  
            protected by the same standard, which codifies protections  
            established in case law, and also protects some forms of  
            'metadata.'  

          Generally, this bill's requirement for a search warrant or  
            probable cause order for electronic communications information  
            is protective of personal privacy and in keeping with the  
            California Constitution's explicit protection of an  
            individual's right of privacy, but does provide for the  
            traditional exceptions in limited circumstances (i.e.,  
            volunteered information, lost devices, emergency situations,  
            etc.).  Moreover, these requirements explicitly limit the  
            searches to necessary information, judicial oversight of  








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            information obtained without a warrant or order, and deletion  
            of unneeded information.  SB 178 also requires reasonable  
            notification to the target of the request, prohibits the use  
            in court of information obtained in violation of these  
            requirements, and provides authorization to affected entities  
            and the Attorney General to take action to uphold these  
            requirements.  

           7)Arguments in support  .  The Electronic Frontier Foundation,  
            co-sponsor of this bill, writes, "While the premise of SB 178  
            is the strong privacy protections enshrined in the California  
            constitution, even the U.S. Supreme Court is recognizing the  
            need to protect digital data.  This past summer, its decision  
            in Riley v. California confirmed that electronic devices like  
            cell phones, and specifically the digital data stored on the  
            phone, differ in both 'a quantitative and a qualitative sense'  
            from other physical objects accessible to law enforcement.   
            These devices, and the digital data contained within, is 'not  
            just another technological convenience' but, given 'all they  
            contain and all they may reveal?hold for many Americans  
            'privacies of life.'"  Thus the Supreme Court, required police  
            'get a warrant' before searching the data on a cell phone  
            incident to arrest."  

          "SB 178 follows the spirit of Riley and extends the warrant  
            requirement to a wealth of 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 to 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 during an  
            emergency."  



            A retired Federal Magistrate Judge (S.D. Cal.), the Hon. James  








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            F. Stiven, writes: "[d]espite strong support for SB 178 in  
            existing law, its passage will bring needed clarity for all  
            those affected, including law enforcement.  For example, legal  
            uncertainty persists about the treatment of location data  
            obtained from cell phone providers, despite the Jones  
            decision. Congress has not updated the federal electronic  
            surveillance laws that are nearing their 30th birthday.  Those  
            laws have been justifiably criticized for being more complex  
            and convoluted than the tax laws and for being particularly a  
            mess regarding location data.  At the same time, government  
            lawyers argue that under Fourth Amendment precedents from the  
            1970s, people forfeit privacy in information, such as location  
            data, stored with third parties.  While the Supreme Court has  
            not extended those precedents to modern communications  
            technologies and its recent decisions suggest it may not, the  
            Court has not yet joined the California Supreme Court in  
            rejecting the third party rule's application to electronic  
            communications and metadata."  



            "Because of the persisting legal uncertainty, Californians  
            have good reason to worry that the information SB 178 covers  
            is inadequately protected.?SB 178 incorporates into California  
            statutory law legally sound provisions that are essential to  
            ensuring that Californians may take advantage of innovations  
            in communications technologies without sacrificing their  
            constitutionally protected rights to privacy, free expression  
            and free association."



            Google adds, "SB 178 would update California law to ensure  
            that online communications are afforded comparable privacy  
            protections to those that exist for offline communications.   
            We believe our users deserve stronger protections than they  
            have today.  Updating the state's electronic surveillance laws  
            is one of the easiest and most effective ways to protect  
            Californians' privacy.  Law enforcement agencies must be able  








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            to pursue illegal activity and keep the public safe.  But it's  
            also important that laws afford the highest privacy  
            protections for our users' communications and related  
            information.  In that context, if enacted, SB 178 will better  
            align California's laws with how people use the Internet today  
            and provide them with important protections they should  
            reasonably expect." 





           8)Arguments in opposition  .  According to the California State  
            Sheriffs' Association, SB 178 "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.  Much of the national debate around electronic  
            privacy goes to whether the federal statutes governing third  
            party records provide for sufficient protections.  While there  
            is a process for some law enforcement to obtain some records  
            via subpoena rather than a search warrant, under existing  
            California law, California prosecutors cannot obtain any  
            electronic information without judicial review.  This measure  
            goes beyond the question of judicial review and search  
            warrants, however, and creates barriers that will hinder law  
            enforcement investigations."



            The California District Attorneys Association (CDAA) argues  
            that SB 178 "creates conflicts with existing laws regarding  
            the execution of search warrants and the lawful use of  
            wiretaps, and mandates the destruction of evidence by law  
            enforcement."  They point out that many provisions of the bill  
            are covered by existing judicial decisions or federal law,  
            such as restrictions on searching electronic devices incident  
            to arrest, and limits on accessing content of electronic  








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            communications held by a service provider.  



            CDAA also argues that "[m]uch of the current national debate  
            around digital privacy and existing federal protections boil  
            down to the ability of some law enforcement to access some  
            information by subpoena - and without judicial review.  This  
            is not the case in California... Under current law, California  
            prosecutors cannot get any electronic evidence - neither  
            content, nor information about the subscriber - without  
            judicial review."

            Additionally, CDAA criticizes the bill for "eliminate[ing] the  
            standard 'ten-day rule' for electronic evidence", which they  
            say will result in "the addition of unnecessary boilerplate to  
            warrants, or a burdensome two-step process when searching for  
            electronic evidence - neither of which add to the privacy of a  
            suspect's data."  CDAA also claims that "SB 178 combines  
            wiretaps and stored communications in the same statute.  In  
            doing so, it creates conflicts with the existing California  
            wiretap statutes?"  Finally, they say that the bill's  
            requirement to destroy "evidence" before the investigation is  
            finished or the case adjudicated may lead to "an accused  
            individual [being] denied evidence of his or her  
            innocence...[M]andating evidence destruction before a case is  
            over will never be a good idea." 

            Finally, the California Police Chiefs Association states that  
            "we are incredibly concerned" about the impact of the  
            prohibition on access to device information by means of  
            electronic communication.  They state,"[o]ne of the most  
            effective techniques to identify and arrest child predators or  
            to combat the trade of child pornography is through undercover  
            investigations where police officers create online profile  
            posing as either potential victims or trading partners?The  
            emails that offenders voluntarily send to police officers  
            contain information ('metadata') that is invaluable in  
            locating and identifying these dangerous criminals.  Similar  








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            techniques are commonly used to track stalkers, cyber bullies,  
            and internet fraudsters.  The proposed prohibition on  
            electronic communication that reveals device information  
            (along with the restrictive definition of 'specific consent')  
            would effectively end online undercover investigations in  
            California."





           9)Technical amendments  .  In order to address the concerns of  
            opponents that this bill might interfere with undercover  
            efforts to identify child predators and other criminals  
            online, the author has agreed to explicitly define the term  
            "specific consent" to better clarify the bill's existing  
            language which states that emails or other communications sent  
            or addressed to a government entity meet the requirements for  
            specific consent.



            On page 4, strike lines 21-22 and add:





               (k)"Specific consent" means consent provided directly to  
               the government entity seeking information, including when  
               the government entity is the addressee or intended  
               recipient of an electronic communication.

            On page 5, lines 16-18, strike the words:

               including when a government entity is the intended  
               recipient of an electronic communication initiated by the  
               authorized possessor of the device









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                                                                    Page  20







           10)Two-thirds vote requirement  .  The California Constitution  
            provides for a "Right to Truth-in-Evidence" as a result of the  
            passage of the Victim's Bill of Rights Act (California  
            Proposition 8, 1982).  That measure was intended to ensure  
            that a state court did not unnecessarily exclude evidence  
            relevant to a criminal prosecution, even if gathered in a  
            manner that violates the rights of the defendant, although the  
            U.S. Constitution may still require exclusion in some cases.   
            Any exception to this right requires a two-thirds vote by both  
            the Assembly and the Senate. 

          Because this bill would exclude evidence obtained or retained in  
            violation of this bill's provisions, it will require a  
            two-thirds vote for passage on the Assembly Floor.  



           11)Previous legislation  .  SB 467 (Leno) of 2013 would have  
            required a search warrant when a governmental agency is  
            seeking the contents of a wire or electronic communication  
            that is stored, held or maintained by a provider.  SB 467 was  
            vetoed by Governor Brown, who wrote: "The bill, however,  
            imposes new notice requirements that go beyond those required  
            by federal law and could impede ongoing criminal  
            investigations.  I do not think that is wise."
             
             SB 1434 (Leno) of 2012 would have required a government entity  
            to get a search warrant in order to obtain the location  
            information of an electronic device.  SB 1434 was vetoed by  
            Governor Brown, who wrote:  "It may be that legislative action  
            is needed to keep the law current in our rapidly evolving  
            electronic age.  But I am not convinced that this bill strikes  
            the right balance between the operational needs of law  
            enforcement and individual expectations of privacy." 

            SB 914 (Leno) of 2011 would have required a search warrant to  
            search the contents of a portable electronic device that is  








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            found during a search incident to an arrest. SB 914 was vetoed  
            by Governor Brown, who wrote: "This measure would overturn a  
            California Supreme Court decision that held that police  
            officers can lawfully search the cell phones of people who  
            they arrest.  The courts are better suited to resolve the  
            complex and case-specific issues relating to constitutional  
            search-and-seizures protections." 

           12)Double-referral  .  This bill is double-referred with the  
            Assembly Public Safety Committee, where this bill will be  
            heard if passed by this Committee. 

          REGISTERED SUPPORT / OPPOSITION:


          


          Support





          California Newspaper Publishers Association (co-sponsor)


          Electronic Frontier Foundation (co-sponsor)


          Adobe


          Airbnb


          American Civil Liberties Union of California










                                                                     SB 178


                                                                    Page  22





          Apple, Inc. 


          Asian Law Caucus


          Bay Area Civil Liberties Coalition


          California Attorneys for Criminal Justice


          California Correctional Peace Officers Association


          California Immigrant Policy Center


          California Library Association


          California Public Defenders Association


          Center for Democracy & Technology


          Center for Media Justice


          Citizens for Criminal Justice Reform - California


          Civil Justice Association of California


          ColorOfChange.org










                                                                     SB 178


                                                                    Page  23





          Consumer Action


          Consumer Federation of California 


          Council on American-Islamic Relations, California Chapter


          Dropbox


          Drug Policy Alliance


          Ella Baker Center for Human Rights


          Engine


          Facebook


          Foursquare Labs, Inc. 


          Google, Inc


          Internet Archive 


          Internet Association


          Legal Services for Prisoners with Children










                                                                     SB 178


                                                                    Page  24





          LinkedIn


          Media Alliance


          Mozilla


          Namecheap, Inc. 


          National Center for Lesbian Rights


          New America's Open Technology Institute


          Oakland Privacy Working Group


          Privacy Rights Clearinghouse


          Restore the Fourth (San Francisco Bay Area Chapter)


          Small Business California


          TechFreedom


          TechNet


          TURN-The Utility Reform Network










                                                                     SB 178


                                                                    Page  25





          Twitter


          17 individual legal scholars


          1 individual




          Opposition


          California District Attorneys Association


          California Police Chiefs Association 


          California State Sheriffs' Association







          Analysis Prepared by:Hank Dempsey / P. & C.P. / (916)  
          319-2200

















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