BILL ANALYSIS Ó
SB 178
Page 1
Date of Hearing: July 14, 2015
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
178 (Leno) - As Amended July 7, 2015
SUMMARY: Prohibits a government entity from compelling the
production of, or access to, electronic-communication
information or electronic-device information without a search
warrant or wiretap order, except under specified emergency
situations. Specifically, this bill:
1)Prohibits a government entity from:
a) Compelling the production of or access to electronic
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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; and
c) Accessing electronic device information by means of
physical interaction or electronic communication with the
device.
2)Permits a government entity to compel the production of, or
access to, electronic information from a service provider, or
compel the production of or access to electronic device
information from any person or entity other than the
authorized possessor of the device subject to a warrant, a
wiretap order, and an order for electronic reader records, as
specified.
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) Pursuant to a wiretap order or a search warrant, as
specified;
b) With the 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 consent of the owner of the device, only when
the device has been reported as lost or stolen;
d) If the government entity has a good-faith belief that an
emergency involving danger of death or serious physical
injury to any person requires access to the electronic
device information; and,
e) If the government entity has a good-faith belief that
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the device is lost, stolen, or abandoned, but 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 a warrant for electronic information to comply with
the following:
a) The warrant must be limited to only that information
necessary to achieve the warrant's objective, including by
specifying the time periods covered, as appropriate and
reasonable, the target individuals or accounts, the
applications or services covered, and the types of
information sought.
b) The warrant must 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.
5)Gives the court discretion to do any of the following when
issuing a warrant for electronic information, or upon the
petition from the target or recipient of the warrant:
a) Appoint a special master charged with ensuring that only
information necessary to achieve the objective of the
warrant or order is produced or accessed; and,
b) Require that any information obtained through the
execution of the warrant or order that is unrelated to the
warrant's objective 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
information when that disclosure is not otherwise prohibited
by state or federal law.
7)Requires a government entity that receives electronic
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communication information which is voluntarily provided by a
service provider to destroy that information within 90 days
unless the entity has or obtains the consent of the sender or
recipient, or obtains a court order authorizing its retention.
8)Requires a court to issue a retention order upon a finding
that the conditions justifying the initial voluntary
disclosure persist, in which case retention shall be
authorized only for as long as those conditions persist, or
there is probable cause to believe that the information
constitutes evidence that a crime has been committed.
9)Requires a government entity that obtains electronic
information pursuant to an emergency involving danger of death
or serious injury to a person, to seek approval, within three
days after obtaining the electronic information, from the
appropriate court, as specified.
10)Declares that these provisions 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.
11)Requires a government entity that executes a warrant 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
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been compelled or requested, and states with reasonable
specificity the nature of the government investigation under
which the information is sought, including a copy of the
warrant or a written statement setting forth facts giving rise
to the emergency.
12)Authorizes the government entity, when a 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. The court must issue the order
if it determines that there is reason to believe that
notification may have an adverse result, not to exceed 90
days, but the court may grant extensions of the delay of up to
90 days each.
13)Requires, upon expiration of the period of delay of the
notification, the government entity to serve or deliver to the
identified targets of the warrant, a document that includes
specified information and a copy of all electronic information
obtained or a summary thereof, and a statement of the grounds
for the court's determination to grant a delay in notifying
the individual, as specified.
14)Requires, if there is no identified target of a warrant, or
emergency request or access at the time of its issuance, the
government entity to submit to the Department of Justice (DOJ)
within three days of the execution of the warrant, a report
that states the nature of the government investigation and a
copy of the warrant, or a written statement.
15)Requires the DOJ to publish each report on its Web site
within 90 days of receipt.
16)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.
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17)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
effort to obtain a search warrant or court order, except as
proof of a violation of these provisions.
18)Authorizes the Attorney General to commence a civil action to
compel any government entity to comply with these provisions.
19)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, 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.
20)States 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.
21)Defines the following terms for purposes of this Act:
a) "Adverse result" means danger to the life or physical
safety of an individual, flight from prosecution, imminent
destruction of or tampering with evidence, intimidation of
potential witnesses, or serious jeopardy to an
investigation or undue delay of a trial.
b) "Authorized possessor" is the possessor of an electronic
device when that person is the owner of the device or has
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been authorized to possess the device by the owner of the
device.
c) "Electronic communication" means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of
any nature in whole or in part by a wire, radio,
electromagnetic, photoelectric, or photo-optical system.
d) "Electronic communication information" means any
information about an electronic communication or the use of
an electronic communication service, including, but not
limited to, the contents, sender, recipients, format, or
location of the sender or recipients at any point during
the communication, the time or date the communication was
created, sent, or received, or any information pertaining
to any individual or device participating in the
communication, including, but not limited to, an IP
address. It does not include subscriber information as
defined in this chapter.
e) "Electronic communication service" means a service that
provides to its subscribers or users the ability to send or
receive electronic communications, including any service
that acts as an intermediary in the transmission of
electronic communications, or stores electronic
communication information.
f) "Electronic device" is a device that stores, generates,
or transmits information in electronic form.
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g) "Electronic device information" means any information
stored on or generated through the operation of an
electronic device, including the current and prior
locations of the device.
h) "Electronic information" is electronic communication
information or electronic device information.
i) "Government entity" is a department or agency of the
state or a political subdivision thereof, or an individual
acting for, or on behalf of, the state or a political
subdivision thereof.
j) "Service provider" is a person or entity offering an
electronic communication service.
aa) "Specific consent" means consent provided directly to
the government entity seeking information, including, but
not limited to, when the government entity is the addressee
or intended recipient of an electronic communication.
bb) "Subscriber information" means the name, street address,
telephone number, email address, or similar contact
information provided by the subscriber to the provider to
establish or maintain an account or communication channel,
a subscriber or account number or identifier, the length of
service, and the types of services used by a user of or
subscriber to a service provider.
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EXISTING FEDERAL LAW: 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 and the persons or things to be seized. (U.S. Const.,
4th Amend.; Cal. Const., art. I, § 13.)
EXISTING STATE LAW:
1)Prohibits exclusion of relevant evidence in a criminal
proceeding on the ground that the evidence was obtained
unlawfully, unless the relevant evidence must be excluded
because it was obtained in violation of the federal
Constitution's Fourth Amendment. (Cal. Const., art. I, §
28(f)(2) (Right to Truth-in-Evidence provision).)
2)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and 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. (Pen. Code, § 1523.)
3)Provides the specific grounds upon which a search warrant may
be issued, including when the property or things to be seized
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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. (Pen. Code, §
1524.)
4)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. (Pen. Code, § 1525.)
5)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. (Pen. Code, § 1528, subd. (a).)
6)Requires a provider of electronic communication service or
remote computing service to disclose to a governmental
prosecuting or investigating agency the name, address, local
and long distance telephone toll billing records, telephone
number or other subscriber number or identity, and length of
service of a subscriber to or customer of that service, and
the types of services the subscriber or customer utilized,
when the governmental entity is granted a search warrant.
(Pen. Code, § 1524.3, subd. (a).)
7)States that a governmental entity receiving subscriber records
or information is not required to provide notice to a
subscriber or customer of the warrant. (Pen. Code, § 1524.3,
subd. (b).)
8)Authorizes a court issuing a search warrant, on a motion made
promptly by the service provider, to quash or modify the
warrant if the information or records requested are unusually
voluminous in nature or compliance with the warrant otherwise
would cause an undue burden on the provider. (Pen. Code, §
1524.3(c).)
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9)Requires a provider of wire or electronic communication
services or a remote computing service, upon the request of a
peace officer, to 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 period upon a renewed
request by the peace officer. (Pen. Code, § 1524.3, subd.
(d).)
10)Specifies that no cause of action shall be brought against
any provider, its officers, employees, or agents for providing
information, facilities, or assistance in good faith
compliance with a search warrant. (Pen. Code, § 1524.3, subd.
(e).)
11)Provides for a process for a search warrant for records that
are in the actual or constructive possession of a foreign
corporation that provides electronic communication services or
remote computing services to the general public, where the
records would reveal the identity of the customers using those
services, data stored by, or on behalf of, the customer, the
customer's usage of those services, the recipient or
destination of communications sent or from those customers, or
the content of those communications. (Pen. Code, § 1524.2.)
FISCAL EFFECT: Unknown
COMMENTS:
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1)Author's Statement: According to the author, "Californians
are guaranteed robust constitutional rights to privacy and
free speech and the Legislature has long been a leader in
protecting individual privacy. However, the emergence of new
technology has left California's statutory protections behind,
and currently, a handwritten letter in a citizen's mailbox
enjoys more robust protection from warrantless surveillance
than an email in someone's inbox. This is nonsensical, and SB
178, the California Electronic Communications Privacy Act
(CalECPA) will restore needed protection against warrantless
government access to mobile devices, email, text messages,
digital documents, metadata, and location information.
CalECPA safeguards the electronic information of California
residents and supports innovation in the digital economy by
updating state privacy law to match our expanding use of
digital information.
"California residents use technology every day to connect,
communicate, work and learn. Our state's leading technology
companies rely on consumer confidence in these services to
help power the California economy. But consumers are
increasingly concerned about warrantless government access to
their digital information, and for good reason. While
technology has advanced exponentially, California privacy law
has remained largely unchanged. Law enforcement is
increasingly taking advantage of outdated privacy laws to turn
mobile phones into tracking devices and to access emails,
digital documents, and text messages without proper judicial
oversight.
"For example:
Google has had a 250% jump in government demands in
just the past five years.
AT&T received over 64,000 demands for location
information in 2014, nearly 70% increase in a single
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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.
"As a result, public confidence in technology has been badly
damaged. Polls consistently show that consumers believe that
their electronic information is sensitive and that current law
does not provide adequate protection from government
monitoring. Companies in turn are increasingly concerned
about the loss of consumer trust and its business impact, and
are in need of a consistent statewide standard for law
enforcement requests.
"Courts and legislatures around the country are recognizing
the need to update privacy laws for the digital age. In two
recent decisions, United States v. Jones and Riley v.
California, the U.S. Supreme Court upheld Fourth Amendment
privacy rights against warrantless government surveillance.
Justice Alito in Jones also prompted lawmakers to take action,
noting that in circumstances involving dramatic technological
change '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.'
"Sixteen state legislatures throughout the country have
already heeded Justice Alito's call and enacted new
legislation, with 10 states safeguarding location information
and 6 states protecting electronic communications content.
The White House has called on lawmakers to update the law to
'ensure the standard of protection for online, digital content
is consistent with that afforded in the physical world.' A
federal bill on the subject garnered over 270 bipartisan
co-sponsors in the United States Congress. California has now
fallen behind states as diverse as Texas, Maine, and Utah that
have already enacted legislation to safeguard rights, spur
innovation, and support public safety.
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"SB 178 heeds the call in Jones for the legislature to balance
privacy and public safety, and will spur innovation by
updating state privacy law to match our expanding use of
digital information. The bill provides:
Appropriate Warrant Protection for Digital
Information
Proper Transparency & Oversight
Appropriate Exceptions for Public Safety and
emergency situations
"SB 178 will ensure that, in most cases, the police must
obtain a warrant from a judge before accessing a person's
private information, including data from personal electronic
devices, email, digital documents, text messages, and location
information.
"The bill also includes thoughtful exceptions to ensure that
law enforcement can continue to effectively and efficiently
protect public safety in emergency situations.
"Californians should not have to choose between using new
technology and keeping their personal lives private. The
business impacts of eroding public confidence brought on by
unwarranted government monitoring has prompted California's
leading technology companies to partner with the state's
premiere privacy advocates in supporting the enactment of SB
178, The California Electronic Communications Privacy Act
(CalECPA)."
1)Fourth Amendment Protections: The Fourth Amendment of the
United States 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 of affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized." Section 13, Article I of the California
Constitution mirrors the Fourth Amendment of the United States
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Constitution.
Application of the Fourth Amendment to searches or seizures of
electronic information by law enforcement has recently been
addressed by the United States Supreme Court in two cases.
In U.S. v. Jones (2012) 132 S.Ct. 945, the 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. (Id. at
p. 949.) The legal reasoning for this conclusion differed
between the Justices. 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. (Ibid.)
Jones left open the question of whether law enforcement's
collection of geolocation data requires a warrant when there
is no physical intrusion, such as when an agency obtains GPS
information from a cell phone provider, or when it uses a
"StingRay device" that is capable of mimicking a wireless
carrier cell tower in order to force all nearby mobile phones
and other cellular data devices to connect to it in order to
extract data. (See e.g.
http://www.news10.net/story/news/investigations/2014/06/23/is-s
acramento-county-sheriff-dept-using-stingray-to-track-collect-d
ata/11296461/ .)
Significantly for purposes of this bill, Justice Sotomayor's
concurring opinion in Jones, supra, asked whether
technological innovations make it "necessary to reconsider the
premise that an individual has no reasonable expectation of
privacy in information voluntarily disclosed to third
parties." (Id. at p. 957.) Justice Sotomayor proposed that
"[t]his approach is ill suited to the digital age, in which
people reveal a great deal of information about themselves to
third parties in the course of carrying out mundane tasks.
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People disclose the phone numbers that they dial or text to
their cellular providers; the URLs that they visit and the
e-mail addresses with which they correspond to their Internet
service providers; and the books, groceries, and medications
they purchase to online retailers." (Ibid.) She suggested
that people do not "reasonably expect that their movements
will be recorded and aggregated in a manner that enables the
Government to ascertain, more or less at will, their political
and religious beliefs, sexual habits, and so on." (Id. at
956.)
More recently, in Riley v. California (2014) 134 S. Ct. 2473,
the Unites States Supreme Court unanimously held that police
must generally obtain a warrant before searching digital
information on arrestee's cell phone. In so doing, the Court
recognized that the search of digital data has serious
implications for an individual's privacy. The court observed
that cell phones are both qualitatively and quantitatively
different than other objects which might be found on an
arrestee's person. (Id. at p. 2489.) The court found the
immense storage capacity of cell phones significant and noted
that this feature has several privacy implications:
First, a cell phone collects in one place may distinct
types of information-an address, a note, a
prescription, a bank statement, a video-that reveal
much more in combination than any isolated record.
Second, a cell phone's capacity allows even just one
type of information to convey far more than previously
possible. The sum of an individual's private life can
be reconstructed through a thousand photographs
labeled with dates, locations, and descriptions; ?
Third, the data on a phone can date back to the
purchase of the phone, or even earlier. (Ibid.)
As to the qualitative differences between a cell phone and
physical records, the court stated:
"An Internet search and browsing history, for example,
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can be found on an Internet-enabled phone and could
reveal an individual's private interests or concerns ?
Data on a cell phone can also reveal where a person
has been. Historic location information is a standard
feature on many smart phones and can reconstruct
someone's specific movements down to the minute, not
only around town but also within a particular
building. (See United States v. Jones 565 U.S. __,
132 S.Ct. 945, (2012) (Sotomayor, J. concurring) ("GPS
monitoring generates a precise comprehensive record of
a person's public movements that reflects a wealth of
detail about her familial, political, professional,
religious, and sexual associations.") (Riley v.
California, supra, 134 S.Ct. at p. 2490.)
Finally, the Court recognized that "cloud computing" poses
additional complications when considering privacy concerns
because the data viewed may not in fact be stored on the
device itself. (Id. at p. 2491.)
The Court concluded, "Modern cell phones are not just another
technological convenience. With all they contain and all they
may reveal, they hold for many Americans 'the privacies of
life.' The fact that technology now allows an individual to
carry such information in his hand does not make the
information any less worthy of the protection for which the
Founders fought. Our answer to the question of what police
must do before searching a cell phone seized incident to an
arrest is accordingly simple-get a warrant." (Id. at p. 2495,
quotation omitted.)
This bill addresses these privacy concerns by requiring a
valid search warrant in order to obtain the content of
electronic communications.
2)Current Privacy Practices of Electronic Communication Services
Providers: Some of the biggest technology companies in
California already require a search warrant before disclosing
the contents of electronic communications. According to a
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recent article, "Google, Microsoft, Yahoo, and Facebook all
say that they require full warrants in order to provide the
contents of emails and messages to government entities . . .
That's a higher standard than currently required by US law,
which as of now is largely defined by the Electronic
Communications Privacy Act (ECPA). The ECPA was passed in
1986 and sets a relatively low bar for accessing private
data." These companies reported that they all have their own
"policies that require a warrant before providing the content
of messages" and that the "fourth amendment backs them up."
(Bohn, "Google, Microsoft, Yahoo, and Facebook say they
require warrants to give over private content," The Verge
(Jan. 26, 2013), <
http://www.theverge.com/2013/1/26/3917684/google-microsoft-yaho
o-facebook-require-warrants-private-content >.)
During a hearing held by the House Judiciary Subcommittee on
Crime, Terrorism, Homeland Security and Investigations,
Richard Salgado, the Director for Law Enforcement and
Information Security at Google provided the following
testimony regarding the need to update the ECPA:
"ECPA was enacted in 1986 - well before the web as we know it
today even existed. The ways in which people use the Internet
in 2013 are dramatically different than 25 years ago.
"In 1986, there was no generally available way to browse the
World Wide Web, and commercial email had yet to be offered to
the general public. Only 340,000 Americans subscribed to cell
phone service, and not one of them was able to send a text
message, surf the web, or download applications. To the
extent that email was used, users had to download messages
from a remote server onto their personal computer, holding and
storing data was expensive, and storage devices were limited
by technology and size.
"In 2013, hundreds of millions of Americans use the web every
day - to work, learn, connect with friends and family,
entertain themselves, and more. Data transfer rates are
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significantly faster than when ECPA became law - making it
possible to share richer data, collaborate with many people,
and perform more complicated tasks in a fraction of the time.
Video sharing sites, video conferencing applications, search
engines, and social networks - all the stuff of science
fiction in 1986 - are now commonplace. Many of these services
are free.
"The distinctions that ECPA made in 1986 were foresighted in
light of technology at the time. But in 2013, ECPA frustrates
users' reasonable expectations of privacy. Users expect, as
they should, that the documents they store online have the
same Fourth Amendment protections as they do when the
government wants to enter the home to seize documents stored
in a desk drawer. There is no compelling policy or legal
rationale for this dichotomy." (Testimony of Richard Salgado,
Director, Law Enforcement and Information Security, Google
Inc., House Judiciary Subcommittee on Crime, Terrorism,
Homeland Security and Investigations Hearing on "ECPA Part 1:
Lawful Access to Stored Content" (March 19, 2013).)
3)Governor's Veto Message: SB 467 (Leno) of the 2013-2014
Legislative session, was similar to this bill. It required a
search warrant when a governmental agency seeks to obtain the
contents of a wire or electronic communication that is stored,
held or maintained by a provider of electronic communication
services or remote computing services. SB 467 was vetoed.
In his veto message, the Governor said, "This bill requires law
enforcement agencies to obtain a search warrant when seeking
access to electronic communications. Federal law currently
requires a search warrant, subpoena or court order to access
this kind of information and in the vast majority of cases,
law enforcement agencies obtain a search warrant.
"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."
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4)Argument in Support: According to the Electronic Frontier
Foundation, a co-sponsor of this bill, "California has a long
and cherished history when it comes to preserving its
citizen's privacy. In 1972, Article I of the California state
constitution was amended to include privacy amongst the
"inalienable" rights of the people of the state. As the
California Supreme Court noted in White v. Davis, 13 Cal.3d
757 (1975), this amendment was aimed specifically at "the
accelerating encroachment on personal freedom and security
caused by increased surveillance and data collection activity
in contemporary society." As a result, the strong privacy
rights contained in the state constitution provide greater
protection than the Fourth Amendment to the U.S. Constitution.
More than 35 years ago, the California Supreme Court in People
v. Blair, 25 Cal.3d 640 (1979), disagreed with the U.S.
Supreme Court and recognized that a person's telephone calling
history- a primitive form of metadata - was entitled to an
expectation of privacy under Article I, section 13 of the
state constitution because this information provides a
"virtual current biography of an in individual.
"Today as the advance of technology - born out of companies and
universities located in California - permeate everyday life,
it become even more important to protect the privacy rights
enshrined in California state constitution. Of course digital
data stored on electronic devices or online provided law
enforcement with a powerful investigative tool for solving
crime, a tool it should be permitted to use to make
Californians safer and solve crimes. But there must be a
balance between security and privacy. That balance has
traditionally been struck by requiring law enforcement obtain
a search warrant before they can access private information.
"SB 178 brings that balance to the modern, digital world by
requiring law enforcement to obtain a search warrant before it
can access data on an electronic device or form an online
service provider, such as an email provider or social media
site.
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"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" for 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 "the 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 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."
5)Argument in Opposition: According to the California State
Sheriffs Association, "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.
"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,
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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.
"Finally, we are concerned about the breadth of the exclusionary
provisions of proposed section 1546.4. Whether evidence
should be admitted or not should be based on a motion to
suppress under Penal Code section 1538.5 and should be based
on violations of the Fourth Amendment. Technical violations
of the 'chapter' that do not implicate a person's right to
privacy should not result in the suppression of evidence."
6)Related Legislation:
a) AB 39 (Medina) revises the procedure by which a
magistrate may issue a search warrant by use of a telephone
and facsimile transmission, electronic mail, or computer
server. AB 39 was ordered to engrossing and enrolling.
b) AB 844 (Bloom) Chapter 57, Statutes of 2015, authorizes
a foreign corporation and foreign limited liability company
to consent to service of process for a search warrant by
email or submission to a designated Internet Web portal.
7)Prior Legislation:
a) SB 467 (Leno) of the 2013-2014 Legislative Session,
would have required a search warrant when a governmental
agency seeks to obtain the contents of a wire or electronic
communication that is stored, held or maintained by a
provider of electronic communication services or remote
computing services. SB 467 was vetoed.
b) SB 1434 (Leno), of the 2011-12 Legislative Session,
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.
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c) SB 914 (Leno), of the 2011-2012 Legislative Session,
would have restricted the authority of law enforcement to
search portable electronic devices without obtaining a
search warrant. SB 914 was vetoed.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union (Co-Sponsor)
California Newspaper Publishers Association (Co-Sponsor)
Electronic Frontier Foundation (Co-Sponsor)
Adobe
Airbnb
Apple Inc.
Asian Law Caucus
Bay Area Civil Liberties Coalition
California Attorneys for Criminal Justice
California Civil Liberties Advocacy
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
Citizens for Criminal Justice Reform
Civil Justice Association of California
ColorOfChange.org
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Consumer Action
Consumer Federation of California
Council on American-Islamic Relations, California Chapter
Dropbox, Inc.
Drug Policy Alliance
Ella Baker Center for Human Rights
Engine
Facebook
Foursquare Labs, Inc.
Google
Internet Archive
Internet Association
Legal Services for Prisoners with Children
LinkedIn
Media Alliance
Mozilla
Namecheap
National Center for Lesbian Rights
Oakland Privacy Working Group
Open Technology Institute
Privacy Rights Clearinghouse
Restore the Fourth, Bay Area Chapter
Small Business California
TechFreedom
The Utility Reform Network
Twitter Inc.
17 Law School Professors
One Private Individual
Opposition
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California District Attorneys Association
California Police Chiefs Association
California State Sheriffs Association
California Statewide Law Enforcement Association
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744