SB 1121, as introduced, Leno. Privacy: electronic communications: search warrant.
Existing law prohibits a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to specified conditions, except for emergency situations, as defined. Existing law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device.
This bill would make a technical, nonsubstantive change to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1546.1 of the Penal Code is amended to
2read:
(a) Except as provided in this section, a government
4entity shall not do any of the following:
P2 1(1) Compel the production of or access to electronic
2communication information from a service provider.
3(2) Compel the production of or access to electronic device
4information from any person or entity other than the authorized
5possessor of the device.
6(3) Access electronic device information by means of physical
7interaction or electronic communication with the electronic device.
8This section does not prohibit the intended recipient of an electronic
9communication from voluntarily disclosing electronic
10communication information concerning that
communication to a
11government entity.
12(b) A government entity may compel the production of or access
13to electronic communication information from a service provider,
14or compel the production of or access to electronic device
15information from any person or entity other than the authorized
16possessor of the device only under the following circumstances:
17(1) Pursuant to a warrant issued pursuant to Chapter 3
18(commencing with Section 1523) and subject to subdivision (d).
19(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
20(commencing with Section 629.50) of Title 15 of Part 1.
21(3) Pursuant to an order for electronic reader records issued
22pursuant to Section 1798.90 of the Civil Code.
23(4) Pursuant to a subpoena issued pursuant to existing state law,
24provided that the information is not sought for the purpose of
25investigating or prosecuting a criminal offense, and compelling
26the production of or access to the information via the subpoena is
27not otherwise prohibited by state or federal law. Nothing in this
28paragraph shall be construed to expand any authority under state
29law to compel the production of or access to electronic information.
30(c) A government entity may access electronic device
31information by means of physical interaction or electronic
32communication with the device only as follows:
33(1) Pursuant to a warrant issued pursuant to Chapter 3
34(commencing with Section 1523) and subject to subdivision (d).
35(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
36(commencing
with Section 629.50) of Title 15 of Part 1.
37(3) With the specific consent of the authorized possessor of the
38device.
39(4) With the specific consent of the owner of the device, only
40when the device has been reported as lost or stolen.
P3 1(5) If the government entity, in good faith, believes that an
2emergency involving danger of death or serious physical injury to
3any person requires access to the electronic device information.
4(6) If the government entity, in good faith, believes the device
5to be lost, stolen, or abandoned, provided that the entity shall only
6access electronic device information in order to attempt to identify,
7verify, or contact the owner or authorized possessor of the device.
8(7) Except where prohibited by state or federal law, if the device
9is seized from an inmate’s possession or found in an area of a
10correctional facility under the jurisdiction of the Department of
11Corrections and Rehabilitation where inmates have access and the
12device is not in the possession of an individual and the device is
13not known or believed to be the possession of an authorized visitor.
14Nothing in this paragraph shall be construed to supersede or
15override Section 4576.
16(d) Any warrant for electronic information shall comply with
17the following:
18(1) The warrant shall describe with particularity the information
19to be seized by specifying the time periods covered and, as
20appropriate and reasonable, the target individuals or accounts, the
21applications or services covered, and the types of information
22sought.
23(2) The warrant shall require that any information obtained
24through the execution of the warrant that is unrelated to the
25objective of the warrant shall be sealed and not subject to further
26review, use, or disclosure without a court order. A court shall issue
27such an order upon a finding that there is probable cause to believe
28that the information is relevant to an active investigation, or review,
29use, or disclosure is required by state or federal law.
30(3) The warrant shall comply with all other provisions of
31California and federal law, including any provisions prohibiting,
32limiting, or imposing additional requirements on the use of search
33warrants. If directed to a service provider, the warrant shall be
34accompanied by an order requiring the service provider to verify
35the authenticity of electronic information that it produces by
36providing an affidavit that complies with the requirements set forth
37in Section 1561 of the Evidence
Code. Admission of that
38information into evidence shall be subject to Section 1562 of the
39Evidence Code.
P4 1(e) When issuing any warrant or order for electronic information,
2or upon the petition from the target or recipient of the warrant or
3order, a court may, at its discretion, dobegin delete any or allend deletebegin insert either or bothend insert of
4the following:
5(1) Appoint a special master, as described in subdivision (d) of
6Section 1524, charged with ensuring that only information
7necessary to achieve the objective of the warrant or order is
8produced or accessed.
9(2) Require that any information obtained through the execution
10of the warrant or order that is
unrelated to the objective of the
11warrant be destroyed as soon as feasible after the termination of
12the current investigation and any related investigations or
13proceedings.
14(f) A service provider may voluntarily disclose electronic
15communication information or subscriber information when that
16disclosure is not otherwise prohibited by state or federal law.
17(g) If a government entity receives electronic communication
18information voluntarily provided pursuant to subdivision (f), it
19shall destroy that information within 90 days unless one or more
20of the following circumstances apply:
21(1) The entity has or obtains the specific consent of the sender
22or recipient of the electronic communications about which
23information was disclosed.
24(2) The entity obtains a
court order authorizing the retention of
25the information. A court shall issue a retention order upon a finding
26that the conditions justifying the initial voluntary disclosure persist,
27in which case the court shall authorize the retention of the
28information only for so long as those conditions persist, or there
29is probable cause to believe that the information constitutes
30evidence that a crime has been committed.
31(3) The entity reasonably believes that the information relates
32to child pornography and the information is retained as part of a
33multiagency database used in the investigation of child
34pornography and related crimes.
35(h) If a government entity obtains electronic information
36pursuant to an emergency involving danger of death or serious
37physical injury to a person, that requires access to the electronic
38information without delay, the entity shall, within three days after
39
obtaining the electronic information, file with the appropriate court
40an application for a warrant or order authorizing obtaining the
P5 1electronic information or a motion seeking approval of the
2emergency disclosures that shall set forth the facts giving rise to
3the emergency, and if applicable, a request supported by a sworn
4affidavit for an order delaying notification under paragraph (1) of
5subdivision (b) of Section 1546.2. The court shall promptly rule
6on the application or motion and shall order the immediate
7destruction of all information obtained, and immediate notification
8pursuant to subdivision (a) of Section 1546.2 if such notice has
9not already been given, upon a finding that the facts did not give
10rise to an emergency or upon rejecting the warrant or order
11application on any other ground.
12(i) This section does not limit the authority of a government
13entity to use an administrative, grand jury, trial, or civil discovery
14subpoena to do
any of the following:
15(1) Require an originator, addressee, or intended recipient of
16an electronic communication to disclose any electronic
17communication information associated with that communication.
18(2) Require an entity that provides electronic communications
19services to its officers, directors, employees, or agents for the
20purpose of carrying out their duties, to disclose electronic
21communication information associated with an electronic
22communication to or from an officer, director, employee, or agent
23of the entity.
24(3) Require a service provider to provide subscriber information.
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