BILL ANALYSIS Ó
SB 178
Page 1
SENATE THIRD READING
SB
178 (Leno and Anderson)
As Amended September 4, 2015
2/3 vote
SENATE VOTE: 39-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Privacy |9-0 |Gatto, Calderon, | |
| | |Chang, Chau, Cooper, | |
| | |Dababneh, Dahle, | |
| | |Gordon, Low | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Public Safety |5-0 |Quirk, Jones-Sawyer, | |
| | |Lopez, Low, Santiago | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Appropriations |15-0 |Gomez, Bigelow, Bloom, | |
| | |Bonta, Calderon, | |
| | |Nazarian, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Holden, Jones, | |
| | |Quirk, Rendon, Weber, | |
| | |Wood | |
SB 178
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| | | | |
| | | | |
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SUMMARY: Creates the California Electronic Communications
Privacy Act (CalECPA), which generally requires law enforcement
entities to obtain a search warrant before accessing data on an
electronic device or from an online service provider.
Specifically, this bill:
1)Prohibits a government entity from:
a) Compelling the production of or access to electronic
communication information from a service provider;
b) Compelling the production of or access to electronic
device information from any person or entity other than the
authorized possessor of the device; and
c) Accessing electronic device information by means of
physical interaction or electronic communication with the
device, although voluntary disclosure to a government
entity is permitted.
2)Permits a government entity to compel the production of or
access to electronic communication information subject 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 pursuant to a
warrant, wiretap order, order for electronic reader records,
or subpoena issued pursuant to existing state law, as
specified.
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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 warrant;
b) Pursuant to a wiretap order;
c) With the specific consent of the authorized possessor of
the device;
d) With the specific consent of the owner of the device,
only when the device has been reported as lost or stolen;
e) If the government entity, in good faith, believes that
an emergency involving danger of death or serious physical
injury to any person requires access to the electronic
device information; and
f) If the government entity, in good faith, believes the
device to be lost, stolen, or abandoned, provided that the
entity shall only access electronic device information in
order to attempt to identify, verify, or contact the owner
or authorized possessor of the device.
g) If the device is seized from an inmate's possession or
found in an area of a correctional facility where inmates
have access and the device is not in the possession of an
individual and the device is not known or believed to be
the possession of an authorized visitor, except as
otherwise provided by state or federal law.
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4)Requires any warrant for electronic information to comply with
the following:
a) The warrant shall describe with particularity the
information to be seized, including by specifying the time
periods covered, and as appropriate and reasonable, the
target individuals or accounts, the applications or
services covered, and the types of information sought.
b) The warrant shall require that any obtained information
unrelated to the objective of the warrant shall be sealed
and not subject to further review, use, or disclosure
unless a court issues an order that there is probable cause
to believe that the information is relevant to an active
investigation, or is otherwise required by state or federal
law.
c) The warrant or order shall comply with all other
provisions of California and federal law, including any
provisions prohibiting, limiting, or imposing additional
requirements on the use of search warrants. Warrants
directed to a service provider must be accompanied by an
order to verify the authenticity of the electronic
information produced, as specified.
5)When issuing any warrant for electronic information, or upon
the petition from the target or recipient of the warrant, a
court may, at its discretion, do any or all of the following:
a) Appoint a special master, who is charged with ensuring
that only information necessary to achieve the objective of
the warrant or order is produced or accessed.
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b) Require that any information obtained through the
execution of the warrant or order that is unrelated to the
objective of the warrant be destroyed as soon as feasible
after termination of current or related investigations.
6)Authorizes a service provider to voluntarily 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
communication information voluntarily provided by a service
provider to destroy that information within 90 days unless the
entity has or obtains the specific consent of the sender or
recipient, obtains a court order, or the information is
retained for the investigation of child pornography and
related crimes, as specified.
8)Requires a government entity that obtains electronic
information pursuant to an emergency to seek an authorizing
warrant or order, or an approval motion, within three days
after obtaining the electronic information, from the
appropriate court, as specified.
9)Declares that certain of these provisions (#1 through #8) do
not limit the authority of a government entity to use an
administrative, grand jury, trial, or civil discovery subpoena
to do either of the following:
a) Require an originator, addressee, or intended recipient
of an electronic communication to disclose any electronic
communication information associated with that
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communication;
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; or,
c) Require a service provider to provide subscriber
information.
10)Requires a government entity that executes a warrant or
obtains electronic information in an emergency pursuant to
these provisions to serve or deliver a notice, as specified,
to the identified targets stating that information about the
target has 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.
11)Authorizes the government entity, when a search warrant is
sought or electronic information obtained under emergency
circumstances, to submit a request supported by a sworn
affidavit for an order delaying notification and prohibiting
any party providing information from notifying any other party
that information has been sought. Further requires the court
to issue the order if the court determines that there is
reason to believe that notification may have an adverse
result, not to exceed 90 days, and the court may grant
extensions of the delay of up to 90 days each, as specified.
12)Requires, upon expiration of the period of delay of the
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notification, the government entity to serve or deliver to the
identified targets of the warrant a document that includes the
information required in 10 above, as well as a copy of all
electronic information obtained or a summary of that
information, and a statement of the grounds for the court's
determination to grant a delay in notifying the target, as
specified.
13)Provides that if there is no identified target of a warrant
or emergency request at the time of issuance, the government
entity shall submit to the Department of Justice (Department)
within three days of the execution of the warrant or issuance
of the request all of the information required in 10 above.
If an order delaying notice is obtained, the government entity
shall submit to the Department upon the expiration of the
period of delay of the notification the information required
in 12 above. The Department shall publish those reports on its
web site within 90 days of receipt, and may redact names or
other personal identifying information from the reports.
14)Declares that nothing in these provisions shall prohibit or
limit a service provider or any other party from disclosing
information about any request or demand for electronic
information, except as provided.
15)Permits any person in a trial, hearing, or proceeding to move
to suppress any electronic information obtained or retained in
violation of the Fourth Amendment to the United States
Constitution or of this chapter, as specified.
16)Authorizes the Attorney General to commence a civil action to
compel any government entity to comply with these provisions.
17)Authorizes an individual whose information is targeted by a
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warrant, 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, 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.
18)Declares that a California or foreign corporation, and its
officers, employees, and agents, are not subject to any cause
of action for providing records, information, facilities, or
assistance in accordance with the terms of a warrant, court
order, statutory authorization, emergency certification, or
wiretap order issued pursuant to these provisions.
19)Defines the terms "adverse result," "authorized possessor,"
"electronic communication," "electronic communication
information," "electronic communication service," "electronic
device," "electronic device information," "electronic
information," "government entity," "service provider,"
"specific consent," and "subscriber information."
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)Ongoing annual General Fund costs to [the Department] of
approximately $300,000 to research and provide notices to
identified targets; unknown, though likely substantial, ongoing
annual General Fund costs to [the Department] for researching
and completing reports for investigations with no identified
targets, and posting local agency reports to its website.
2)Unknown ongoing annual costs for local law enforcement
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agencies for providing notices and producing investigation
reports for [Department] publication. Though this bill is not
keyed a local mandate, there could be substantial state mandated
reimbursement of local costs.
COMMENTS: This bill is intended to codify, expand and
harmonize existing case law and current statutes to generally
require law enforcement entities to obtain a search warrant
before accessing data (or metadata) on an electronic device or
from an online service provider. This bill is co-sponsored by
the Electronic Frontier Foundation and the California Newspaper
Publishers Association.
According to the author, the federal law governing legal search
and seizure in criminal investigations "has not been
meaningfully updated to account for modern technology." As a
result, the author and supporters believe that existing law is
insufficient to protect all forms of electronic communications
and their metadata, such personal emails stored on a company's
servers or mobile phone location data held by carriers. Such
information is in great demand from law enforcement, according
to supporters, with warrantless demands by government agencies
for personal information having increased substantially in
recent years.
This bill aims to codify and strengthen privacy protections
under the California Constitution in a number of ways. First,
it requires a demonstration of probable cause to obtain
electronic communications information from a third party service
provider, which better protects vital communications technology
like smartphones and the information they contain. It also
applies the probable cause requirement to past electronic
communications, regardless of their age, which is an improvement
over federal law. This bill also guarantees that geolocation
information is protected by the same standard, and also protects
some forms of metadata. The end goal, according to the author,
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is to create a "clear, uniform warrant rule for California law
enforcement access to electronic information."
Recent amendments include a clarification of what constitutes
"specific consent" in the voluntary sharing of information so as
not to disrupt child pornography investigations, a clarification
of the right to suppress evidence obtained in violation of the
Fourth Amendment, and elaboration of the requirements for a
warrant (including the sealing of unrelated information and
verification of authenticity by service providers).
The California Constitution provides for a "Right to
Truth-in-Evidence" as a result of the passage of the Victim's
Bill of Rights Act (California Proposition 8, 1982). Because
this bill would permit the suppression of evidence obtained or
retained in violation of this bill's provisions, it will require
a two-thirds vote for passage on the Assembly Floor.
Analysis Prepared by:
Hank Dempsey / P. & C.P. / (916) 319-2200 FN:
0002170