BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 178


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          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








                                                                     SB 178


                                                                    Page  24





          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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                                                                    Page  25






          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