Amended in Assembly June 23, 2016

Amended in Assembly June 14, 2016

Amended in Senate March 29, 2016

Senate BillNo. 1121


Introduced by Senator Leno

February 17, 2016


An act to amend Sections 1546,begin delete 1564.1,end deletebegin insert 1546.1,end insert and 1546.2 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 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 for the purpose of accessing information concerning the location of the electronic device in order to respond to an emergency 911begin delete call.end deletebegin insert call from that device.end insert The bill would also provide that the definition of “electronic device” for purposes of the bill does not include a magnetic strip on a driver’s license or identification card, as prescribed.

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 government entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.

This bill would also authorize a government entity to retain the information beyond 90 days if the service provider or subscriber is, or discloses to, 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 government entity.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P2    1

SECTION 1.  

Section 1546 of the Penal Code is amended to
2read:

3

1546.  

For purposes of this chapter, the following definitions
4apply:

5(a) An “adverse result” means any of the following:

6(1) Danger to the life or physical safety of an individual.

7(2) Flight from prosecution.

8(3) Destruction of or tampering with evidence.

9(4) Intimidation of potential witnesses.

10(5) Serious jeopardy to an investigation or undue delay of a
11trial.

12(b) “Authorized possessor” means the possessor of an electronic
13device when that person is the owner of the device or has been
14authorized to possess the device by the owner of the device.

15(c) “Electronic communication” means the transfer of signs,
16signals, writings, images, sounds, data, or intelligence of any nature
17in whole or in part by a wire, radio, electromagnetic, photoelectric,
18or photo-optical system.

19(d) “Electronic communication information” means any
20information about an electronic communication or the use of an
P3    1electronic communication service, including, but not limited to,
2the contents, sender, recipients, format, or location of the sender
3or recipients at any point during the communication, the time or
4date the communication was created, sent, or received, or any
5information pertaining to any individual or device participating in
6the communication, including, but not limited to, an IP address.
7 Electronic communication information does not include subscriber
8information as defined in this chapter.

9(e) “Electronic communication service” means a service that
10provides to its subscribers or users the ability to send or receive
11electronic communications, including any service that acts as an
12intermediary in the transmission of electronic communications, or
13stores electronic communication information.

14(f) “Electronic device” means a device that stores, generates,
15or transmits information in electronic form. An electronic device
16does not include the magnetic strip on a driver’s license or an
17identification card issued by this state or a driver’s license or
18equivalent identification card issued by another state.

19(g) “Electronic device information” means any information
20stored on or generated through the operation of an electronic
21device, including the current and prior locations of the device.

22(h) “Electronic information” means electronic communication
23information or electronic device information.

24(i) “Government entity” means a department or agency of the
25state or a political subdivision thereof, or an individual acting for
26or on behalf of the state or a political subdivision thereof.

27(j) “Service provider” means a person or entity offering an
28electronic communication service.

29(k) “Specific consent” means consent provided directly to the
30 government entity seeking information, including, but not limited
31to, when the government entity is the addressee or intended
32recipient or a member of the intended audience of an electronic
33communication. Specific consent does not require that the
34originator of the communication have actual knowledge that an
35addressee, intended recipient, or member of the specific audience
36is a government entity.

37(l) “Subscriber information” means the name, street address,
38telephone number, email address, or similar contact information
39provided by the subscriber to the provider to establish or maintain
40an account or communication channel, a subscriber or account
P4    1number or identifier, the length of service, and the types of services
2used by a user of or subscriber to a service provider.

3

SEC. 2.  

Section 1546.1 of the Penal Code is amended to read:

4

1546.1.  

(a) Except as provided in this section, a government
5entity shall not do any of the following:

6(1) Compel the production of or access to electronic
7communication information from a service provider.

8(2) Compel the production of or access to electronic device
9information from any person or entity other than the authorized
10possessor of the device.

11(3) Access electronic device information by means of physical
12interaction or electronic communication with the electronic device.
13This section does not prohibit the intended recipient of an electronic
14communication from voluntarily disclosing electronic
15communication information concerning that communication to a
16government entity.

17(b) A government entity may compel the production of or access
18to electronic communication information from a service provider,
19or compel the production of or access to electronic device
20information from any person or entity other than the authorized
21possessor of the device only under the following circumstances:

22(1) Pursuant to a warrant issued pursuant to Chapter 3
23(commencing with Section 1523) and subject to subdivision (d).

24(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
25(commencing with Section 629.50) of Title 15 of Part 1.

26(3) Pursuant to an order for electronic reader records issued
27pursuant to Section 1798.90 of the Civil Code.

28(4) Pursuant to a subpoena issued pursuant to existing state law,
29provided that the information is not sought for the purpose of
30investigating or prosecuting a criminal offense, and compelling
31the production of or access to the information via the subpoena is
32not otherwise prohibited by state or federal law. Nothing in this
33paragraph shall be construed to expand any authority under state
34law to compel the production of or access to electronic information.

35(c) A government entity may access electronic device
36information by means of physical interaction or electronic
37communication with the device only as follows:

38(1) Pursuant to a warrant issued pursuant to Chapter 3
39(commencing with Section 1523) and subject to subdivision (d).

P5    1(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
2(commencing with Section 629.50) of Title 15 of Part 1.

3(3) With the specific consent of the authorized possessor of the
4device.

5(4) With the specific consent of the owner of the device, only
6when the device has been reported as lost or stolen.

7(5) If the government entity, in good faith, believes that an
8emergency involving danger of death or serious physical injury to
9any person requires access to the electronic device information.

10(6) If the government entity, in good faith, believes the device
11to be lost, stolen, or abandoned, provided that the government
12entity shall only access electronic device information in order to
13attempt to identify, verify, or contact the owner or authorized
14possessor of the device.

15(7) Except where prohibited by state or federal law, if the device
16is seized from an inmate’s possession or found in an area of a
17correctional facility or a secure area of a local detention facility
18where inmates have access, the device is not in the possession of
19an individual, and the device is not known or believed to be the
20possession of an authorized visitor. Nothing in this paragraph shall
21be construed to supersede or override Section 4576.

22(8) If the government entity accesses information concerning
23the location or the telephone number of the electronic device in
24order to respond to an emergency 911begin delete call.end deletebegin insert call from that device.end insert

25(d) Any warrant for electronic information shall comply with
26the following:

27(1) The warrant shall describe with particularity the information
28to be seized by specifying, as appropriate and reasonable, the time
29periods covered, the target individuals or accounts, the applications
30or services covered, and the types of information sought, provided,
31however, that in the case of a warrant described in paragraph (1)
32of subdivision (c), the court may determine that it is not appropriate
33to specify time periods because of the specific circumstances of
34the investigation, including, but not limited to, the nature of the
35device to be searched.

36(2) The warrant shall require that any information obtained
37through the execution of the warrant that is unrelated to the
38objective of the warrant shall be sealed and shall not be subject to
39further review, use, or disclosure except pursuant to a court order
40or to comply with discovery as required by Sections 1054.1 and
P6    11054.7. A court shall issue such an order upon a finding that there
2is probable cause to believe that the information is relevant to an
3active investigation, or review, use, or disclosure is required by
4state or federal law.

5(3) The warrant shall comply with all other provisions of
6California and federal law, including any provisions prohibiting,
7limiting, or imposing additional requirements on the use of search
8warrants. If directed to a service provider, the warrant shall be
9accompanied by an order requiring the service provider to verify
10the authenticity of electronic information that it produces by
11providing an affidavit that complies with the requirements set forth
12in Section 1561 of the Evidence Code. Admission of that
13information into evidence shall be subject to Section 1562 of the
14Evidence Code.

15(e) When issuing any warrant or order for electronic information,
16or upon the petition from the target or recipient of the warrant or
17order, a court may, at its discretion, do either or both of the
18following:

19(1) Appoint a special master, as described in subdivision (d) of
20Section 1524, charged with ensuring that only information
21necessary to achieve the objective of the warrant or order is
22produced or accessed.

23(2) Require that any information obtained through the execution
24of the warrant or order that is unrelated to the objective of the
25warrant be destroyed as soon as feasible after the termination of
26the current investigation and any related investigations or
27proceedings.

28(f) A service provider may voluntarily disclose electronic
29communication information or subscriber information when that
30disclosure is not otherwise prohibited by state or federal law.

31(g) If a government entity receives electronic communication
32information voluntarily provided pursuant to subdivision (f), it
33shall destroy that information within 90 days unless one or more
34of the following circumstances apply:

35(1) The government entity has or obtains the specific consent
36of the sender or recipient of the electronic communications about
37which information was disclosed.

38(2) The government entity obtains a court order authorizing the
39retention of the information. A court shall issue a retention order
40upon a finding that the conditions justifying the initial voluntary
P7    1disclosure persist, in which case the court shall authorize the
2retention of the information only for so long as those conditions
3persist, or there is probable cause to believe that the information
4constitutes evidence that a crime has been committed.

5(3) The government entity reasonably believes that the
6information relates to child pornography and the information is
7retained as part of a multiagency database used in the investigation
8of child pornography and related crimes.

9(4) The service provider or subscriber is, or discloses the
10information to, a federal, state, or local prison, jail, or juvenile
11detention facility, and all participants to the electronic
12communication were informed, prior to the communication, that
13the service provider may disclose the information to the
14government entity.

15(h) If a government entity obtains electronic information
16pursuant to an emergency involving danger of death or serious
17physical injury to a person, that requires access to the electronic
18information without delay, the government entity shall, within
19three court days after obtaining the electronic information, file
20with the appropriate court an application for a warrant or order
21authorizing obtaining the electronic information or a motion
22seeking approval of the emergency disclosures that shall set forth
23the facts giving rise to the emergency, and if applicable, a request
24supported by a sworn affidavit for an order delaying notification
25under paragraph (1) of subdivision (b) of Section 1546.2. The court
26shall promptly rule on the application or motion and shall order
27the immediate destruction of all information obtained, and
28immediate notification pursuant to subdivision (a) of Section
291546.2 if that notice has not already been given, upon a finding
30that the facts did not give rise to an emergency or upon rejecting
31the warrant or order application on any other ground. This
32subdivision does not apply if the government entity obtains
33information concerning the location of the electronic device in
34order to respond to an emergency 911begin delete call.end deletebegin insert call from that device.end insert

35(i) This section does not limit the authority of a government
36entity to use an administrative, grand jury, trial, or civil discovery
37subpoena to do any of the following:

38(1) Require an originator, addressee, or intended recipient of
39an electronic communication to disclose any electronic
40communication information associated with that communication.

P8    1(2) Require an entity that provides electronic communications
2services to its officers, directors, employees, or agents for the
3purpose of carrying out their duties, to disclose electronic
4communication information associated with an electronic
5communication to or from an officer, director, employee, or agent
6of the entity.

7(3) Require a service provider to provide subscriber information.

8(j) Nothing in this chapter shall be construed to alter the
9authority of a government entity that owns an electronic device to
10compel an employee who is authorized to possess the device to
11return the device to the government entity’s possession.

12

SEC. 3.  

Section 1546.2 of the Penal Code is amended to read:

13

1546.2.  

(a) Except as otherwise provided in this section, any
14government entity that executes a warrant, or obtains electronic
15information in an emergency pursuant to Section 1546.1, shall
16serve upon, or deliver to by registered or first-class mail, electronic
17mail, or other means reasonably calculated to be effective, the
18identified targets of the warrant or emergency request, a notice
19that informs the recipient that information about the recipient has
20been compelled or requested, and states with reasonable specificity
21the nature of the government investigation under which the
22information is sought. The notice shall include a copy of the
23warrant or a written statement setting forth facts giving rise to the
24emergency. The notice shall be provided contemporaneously with
25the execution of a warrant, or, in the case of an emergency, within
26three court days after obtaining the electronic information.

27(b) (1) When a warrant is sought or electronic information is
28obtained in an emergency under Section 1546.1, the government
29entity may submit a request supported by a sworn affidavit for an
30order delaying notification and prohibiting any party providing
31information from notifying any other party that information has
32been sought. The court shall issue the order if the court determines
33that there is reason to believe that notification may have an adverse
34result, but only for the period of time that the court finds there is
35reason to believe that the notification may have that adverse result,
36and not to exceed 90 days.

37(2) The court may grant extensions of the delay of up to 90 days
38each on the same grounds as provided in paragraph (1).

39(3) Upon expiration of the period of delay of the notification,
40the government entity shall serve upon, or deliver to by registered
P9    1or first-class mail, electronic mail, or other means reasonably
2calculated to be effective as specified by the court issuing the order
3authorizing delayed notification, the identified targets of the
4warrant, a document that includes the information described in
5subdivision (a), a copy of all electronic information obtained or a
6summary of that information, including, at a minimum, the number
7and types of records disclosed, the date and time when the earliest
8and latest records were created, and a statement of the grounds for
9the court’s determination to grant a delay in notifying the
10individual.

11(c) If there is no identified target of a warrant or emergency
12request at the time of its issuance, the government entity shall
13submit to the Department of Justice within three days of the
14execution of the warrant or issuance of the request all of the
15information required in subdivision (a). If an order delaying notice
16is obtained pursuant to subdivision (b), the government entity shall
17submit to the department upon the expiration of the period of delay
18of the notification all of the information required in paragraph (3)
19of subdivision (b). The department shall publish all those reports
20on its Internet Web site within 90 days of receipt. The department
21may redact names or other personal identifying information from
22the reports.

23(d) Except as otherwise provided in this section, nothing in this
24chapter shall prohibit or limit a service provider or any other party
25from disclosing information about any request or demand for
26electronic information.



O

    96