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 SB 178 Page 2 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 SB 178 Page 3 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 SB 178 Page 4 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 SB 178 Page 5 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. SB 178 Page 6 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 SB 178 Page 7 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. SB 178 Page 8 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. SB 178 Page 9 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 SB 178 Page 10 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).) SB 178 Page 11 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: SB 178 Page 12 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 SB 178 Page 13 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. SB 178 Page 14 "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 SB 178 Page 15 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. SB 178 Page 16 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, SB 178 Page 17 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 SB 178 Page 18 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 SB 178 Page 19 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." SB 178 Page 20 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. SB 178 Page 21 "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, SB 178 Page 22 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. SB 178 Page 23 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 SB 178 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