Amended in Senate March 29, 2016

Senate Bill No. 1121

Introduced by Senator Leno

February 17, 2016

An act to amend begin delete Section 1546.1 end delete begin insert Sections 1546.1 and 1546.2 end insert of the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

SB 1121, as amended, 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 begin delete make a technical, nonsubstantive change to those provisions. end delete begin insert additionally authorize a government entity, without a warrant or other order, to access electronic device information by means of physical interaction or electronic communication with the device in response to a contact made by a member of the public using a 911 emergency communications system for the purpose of accessing information concerning the location of the electronic device that initiated that contact. end insert

begin insert

Existing law authorizes a service provider to voluntarily disclose electronic communication information or subscriber information. Existing law requires a government entity to destroy that information within 90 days unless one or more specified circumstances apply, including, among others, the entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.

end insert begin insert

This bill would also authorize a government entity to retain the information beyond 90 days if the service provider or subscriber is a federal, state, or local prison, jail, or juvenile detention facility, and all parties to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the entity.

end insert

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1546.1 of the Penal Code is amended to
read:

1546.1.  

(a) Except as provided in this section, a government
entity shall not do any of the following:

(1) Compel the production of or access to electronic
communication information from a service provider.

(2) Compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device.

(3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
This section does not prohibit the intended recipient of an electronic
communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.

(b) A government entity may compel the production of or access
to electronic communication 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 only under the following circumstances:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code.

(4) Pursuant to a subpoena issued pursuant to existing state law,
provided that the information is not sought for the purpose of
investigating or prosecuting a criminal offense, and compelling
the production of or access to the information via the subpoena is
not otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any authority under state
law to compel the production of or access to electronic information.

(c) A government entity may access electronic device
information by means of physical interaction or electronic
communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) With the specific consent of the authorized possessor of the
device.

(4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.

(5) 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.

(6) 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.

(7) Except where prohibited by state or federal law, if the device
is seized from an inmate’s possession or found in an area of a
correctional facility under the jurisdiction of the Department of
Corrections and Rehabilitation 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.
Nothing in this paragraph shall be construed to supersede or
override Section 4576.

begin insert

(8) In response to a contact made by a member of the public
using a 911 emergency communications system, but only to access
information concerning the location of the electronic device that
initiated that contact.

end insert

(d) Any warrant for electronic information shall comply with
the following:

(1) The warrant shall describe with particularity the information
to be seized 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.

(2) The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and not subject to further
review, use, or disclosure without a court order. A court shall issue
such an order upon a finding that there is probable cause to believe
that the information is relevant to an active investigation, or review,
use, or disclosure is required by state or federal law.

(3) The warrant 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. If directed to a service provider, the warrant shall be
accompanied by an order requiring the service provider to verify
the authenticity of electronic information that it produces by
providing an affidavit that complies with the requirements set forth
in Section 1561 of the Evidence Code. Admission of that
information into evidence shall be subject to Section 1562 of the
Evidence Code.

(e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
order, a court may, at its discretion, do either or both of the
following:

(1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information
necessary to achieve the objective of the warrant or order is
produced or accessed.

(2) 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 the termination of
the current investigation and any related investigations or
proceedings.

(f) A service provider may voluntarily disclose electronic
communication information or subscriber information when that
disclosure is not otherwise prohibited by state or federal law.

(g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (f), it
shall destroy that information within 90 days unless one or more
of the following circumstances apply:

(1) The entity has or obtains the specific consent of the sender
or recipient of the electronic communications about which
information was disclosed.

(2) The entity obtains a court order authorizing the retention of
the information. A court shall issue a retention order upon a finding
that the conditions justifying the initial voluntary disclosure persist,
in which case the court shall authorize the retention of the
information only for so long as those conditions persist, or there
is probable cause to believe that the information constitutes
evidence that a crime has been committed.

(3) The entity reasonably believes that the information relates
to child pornography and the information is retained as part of a
multiagency database used in the investigation of child
pornography and related crimes.

begin insert

(4) The service provider or subscriber is a federal, state, or
local prison, jail, or juvenile detention facility, and all parties to
the electronic communication were informed, prior to the
communication, that the service provider may disclose the
information to the entity.

end insert

(h) If a government entity obtains electronic information
pursuant to an emergency involving danger of death or serious
physical injury to a person, that requires access to the electronic
information without delay, the entity shall, within three begin insert court end insert days
after obtaining the electronic information, file with the appropriate
court an application for a warrant or order authorizing obtaining
the electronic information or a motion seeking approval of the
emergency disclosures that shall set forth the facts giving rise to
the emergency, and if applicable, a request supported by a sworn
affidavit for an order delaying notification under paragraph (1) of
subdivision (b) of Section 1546.2. The court shall promptly rule
on the application or motion and shall order the immediate
destruction of all information obtained, and immediate notification
pursuant to subdivision (a) of Section 1546.2 if such notice has
not already been given, upon a finding that the facts did not give
rise to an emergency or upon rejecting the warrant or order
application on any other ground.

(i) This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil discovery
subpoena to do any of the following:

(1) Require an originator, addressee, or intended recipient of
an electronic communication to disclose any electronic
communication information associated with that communication.

(2) 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.

(3) Require a service provider to provide subscriber information.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1546.2 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1546.2.  

(a) Except as otherwise provided in this section, any
government entity that executes a warrant, or obtains electronic
information in an emergency pursuant to Section 1546.1, shall
serve upon, or deliver to by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective, the
identified targets of the warrant or emergency request, a notice
that informs the recipient that information about the recipient has
been compelled or requested, and states with reasonable specificity
the nature of the government investigation under which the
information is sought. The notice shall include a copy of the
warrant or a written statement setting forth facts giving rise to the
emergency. The notice shall be provided contemporaneously with
the execution of a warrant, or, in the case of an emergency, within
three begin insert court end insert days after obtaining the electronic information.

(b) (1) When a warrant is sought or electronic information is
obtained in an emergency under Section 1546.1, the government
entity may 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 shall issue the order if the court determines
that there is reason to believe that notification may have an adverse
result, but only for the period of time that the court finds there is
reason to believe that the notification may have that adverse result,
and not to exceed 90 days.

(2) The court may grant extensions of the delay of up to 90 days
each on the same grounds as provided in paragraph (1).

(3) Upon expiration of the period of delay of the notification,
the government entity shall serve upon, or deliver to by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effective as specified by the court issuing the order
authorizing delayed notification, the identified targets of the
warrant, a document that includes the information described in
subdivision (a), a copy of all electronic information obtained or a
summary of that information, including, at a minimum, the number
and types of records disclosed, the date and time when the earliest
and latest records were created, and a statement of the grounds for
the court’s determination to grant a delay in notifying the
individual.

(c) If there is no identified target of a warrant or emergency
request at the time of its issuance, the government entity shall
submit to the Department of Justice within three days of the
execution of the warrant or issuance of the request all of the
information required in subdivision (a). If an order delaying notice
is obtained pursuant to subdivision (b), the government entity shall
submit to the department upon the expiration of the period of delay
of the notification all of the information required in paragraph (3)
of subdivision (b). The department shall publish all those reports
on its Internet Web site within 90 days of receipt. The department
may redact names or other personal identifying information from
the reports.

(d) Except as otherwise provided in this section, nothing in this
chapter shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for
electronic information.