Amended in Assembly August 19, 2016

Amended in Assembly August 1, 2016

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 Sectionsbegin insert 1534,end insert 1546, 1546.1, and 1546.2 of the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

SB 1121, as amended, Leno. Privacy: electronicbegin delete communications: search warrant.end deletebegin insert communications.end insert

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 thebegin delete deviceend deletebegin insert device: (1)end insert if the device is seized from an authorized possessor, as defined, who is serving a term ofbegin delete parole,end deletebegin insert parole or postrelease community supervision,end insert as specified;begin insert (2)end insert if the device is seized from an authorized possessor who is subject to an electronic device search as a condition of probation,begin delete postrelease community supervision,end delete mandatory supervision, or pretrial release, as specified; orbegin insert (3)end insert for the purpose of accessing information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device. 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, as specified. 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 the information to, a federal, state, or local prison, jail, or juvenile detention facility, and all participants to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the government entity.

This bill would make technical, nonsubstantive changes to these provisions.

begin insert

This bill would provide that the prohibition against a government entity compelling the production of or access to electronic communication information or electronic device information without a search warrant, wiretap order, order for electronic reader records, or subpoena does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.

end insert
begin insert

The bill would incorporate changes to Section 1546.1 of the Penal Code proposed by both this bill and AB 1924, which would become operative only if both bills are enacted and become effective on or before January 1, 2017, and this bill is enacted after AB 1924.

end insert

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

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

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1534 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

1534.  

(a) A search warrant shall be executed and returned
4within 10 days after date of issuance. A warrant executed within
5the 10-day period shall be deemed to have been timely executed
6and no further showing of timeliness need be made. After the
7expiration of 10 days, the warrant, unless executed, is void. The
8documents and records of the court relating to the warrant need
9not be open to the public until the execution and return of the
10warrant or the expiration of the 10-day period after issuance.
11Thereafter, if the warrant has been executed, the documents and
12records shall be open to the public as a judicial record.

13(b) (1) A tracking device search warrant issued pursuant to
14paragraph (12) of subdivision (a) of Section 1524 shall identify
15the person or property to be tracked and shall specify a reasonable
16length of time, not to exceed 30 days from the date the warrant is
17issued, that the device may be used. The court may, for good cause,
18grant one or more extensions for the time that the device may be
19used, with each extension lasting for a reasonable length of time,
20not to exceed 30 days. The search warrant shall command the
21officer to execute the warrant by installing a tracking device or
22serving a warrant on a third-party possessor of the tracking data.
23The officer shall perform any installation authorized by the warrant
24during the daytime unless the magistrate, for good cause, expressly
25authorizes installation at another time. Execution of the warrant
26shall be completed no later than 10 days immediately after the date
27of issuance. A warrant executed within this 10-day period shall be
28deemed to have been timely executed and no further showing of
29timeliness need be made. After the expiration of 10 days, the
30warrant shall be void, unless it has been executed.

31(2) An officer executing a tracking device search warrant shall
32not be required to knock and announce his or her presence before
33executing the warrant.

P4    1(3) No later than 10 calendar days after the use of the tracking
2device has ended, the officer executing the warrant shall file a
3return to the warrant.

4(4) begin insert(A)end insertbegin insertend insertNo later than 10 calendar days after the use of the
5tracking device has ended, the officer who executed the tracking
6device warrant shallbegin delete serve a copy of the warrant onend deletebegin insert notifyend insert the
7person who was tracked or whose property wasbegin delete tracked. Upon the
8request of a government agency, the magistrate may, for good
9cause, delay service of a copy of the warrant.end delete
begin insert end insertbegin inserttracked pursuant to
10subdivision (a) of Section 1546.2.end insert

begin insert

11
(B) Notice under this paragraph may be delayed pursuant to
12subdivision (b) of Section 1546.2.

end insert

13(5)begin insert end insert An officer installing a device authorized by a tracking device
14search warrant may install and use the device only within
15California.

16(6) As used in this section, “tracking device” means any
17electronic or mechanical device that permits the tracking of the
18movement of a person or object.

19(7) As used in this section, “daytime” means the hours between
206 a.m. and 10 p.m. according to local time.

21(c) If a duplicate original search warrant has been executed, the
22peace officer who executed the warrant shall enter the exact time
23of its execution on its face.

24(d) A search warrant may be made returnable before the issuing
25magistrate or his or her court.

26

begin deleteSECTION 1.end delete
27
begin insertSEC. 2.end insert  

Section 1546 of the Penal Code is amended to read:

28

1546.  

For purposes of this chapter, the following definitions
29apply:

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

31(1) Danger to the life or physical safety of an individual.

32(2) Flight from prosecution.

33(3) Destruction of or tampering with evidence.

34(4) Intimidation of potential witnesses.

35(5) Serious jeopardy to an investigation or undue delay of a
36trial.

37(b) “Authorized possessor” means the possessor of an electronic
38device when that person is the owner of the device or has been
39authorized to possess the device by the owner of the device.

P5    1(c) “Electronic communication” means the transfer of signs,
2signals, writings, images, sounds, data, or intelligence of any nature
3in whole or in part by a wire, radio, electromagnetic, photoelectric,
4or photo-optical system.

5(d) “Electronic communication information” means any
6information about an electronic communication or the use of an
7electronic communication service, including, but not limited to,
8the contents, sender, recipients, format, or location of the sender
9or recipients at any point during the communication, the time or
10date the communication was created, sent, or received, or any
11information pertaining to any individual or device participating in
12the communication, including, but not limited to, an IP address.
13“Electronic communication information” does not include
14subscriber information as defined in this chapter.

15(e) “Electronic communication service” means a service that
16provides to its subscribers or users the ability to send or receive
17electronic communications, including any service that acts as an
18intermediary in the transmission of electronic communications, or
19stores electronic communication information.

20(f) “Electronic device” means a device that stores, generates,
21or transmits information in electronic form. An electronic device
22does not include the magnetic strip on a driver’s license or an
23identification card issued by this state or a driver’s license or
24equivalent identification card issued by another state.

25(g) “Electronic device information” means any information
26stored on or generated through the operation of an electronic
27device, including the current and prior locations of the device.

28(h) “Electronic information” means electronic communication
29information or electronic device information.

30(i) “Government entity” means a department or agency of the
31state or a political subdivision thereof, or an individual acting for
32or on behalf of the state or a political subdivision thereof.

33(j) “Service provider” means a person or entity offering an
34electronic communication service.

35(k) “Specific consent” means consent provided directly to the
36 government entity seeking information, including, but not limited
37to, when the government entity is the addressee or intended
38recipient or a member of the intended audience of an electronic
39communication. Specific consent does not require that the
40originator of the communication have actual knowledge that an
P6    1addressee, intended recipient, or member of the specific audience
2is a government entity.

3(l) “Subscriber information” means the name, street address,
4telephone number, email address, or similar contact information
5provided by the subscriber to the service provider to establish or
6maintain an account or communication channel, a subscriber or
7account number or identifier, the length of service, and the types
8of services used by a user of or subscriber to a service provider.

9

begin deleteSEC. 2.end delete
10
begin insertSEC. 3.end insert  

Section 1546.1 of the Penal Code is amended to read:

11

1546.1.  

(a) Except as provided in this section, a government
12entity shall not do any of the following:

13(1) Compel the production of or access to electronic
14communication information from a service provider.

15(2) Compel the production of or access to electronic device
16information from any person or entity other than the authorized
17possessor of the device.

18(3) Access electronic device information by means of physical
19interaction or electronic communication with the electronic device.
20This section does not prohibit the intended recipient of an electronic
21communication from voluntarily disclosing electronic
22communication information concerning that communication to a
23government entity.

24(b) A government entity may compel the production of or access
25to electronic communication information from a service provider,
26or compel the production of or access to electronic device
27information from any person or entity other than the authorized
28possessor of the device only under the following circumstances:

29(1) Pursuant to a warrant issued pursuant to Chapter 3
30(commencing with Section 1523) and subject to subdivision (d).

31(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
32(commencing with Section 629.50) of Title 15 of Part 1.

33(3) Pursuant to an order for electronic reader records issued
34pursuant to Section 1798.90 of the Civil Code.

35(4) Pursuant to a subpoena issued pursuant to existing state law,
36provided that the information is not sought for the purpose of
37investigating or prosecuting a criminal offense, and compelling
38the production of or access to the information via the subpoena is
39not otherwise prohibited by state or federal law. Nothing in this
P7    1paragraph shall be construed to expand any authority under state
2law to compel the production of or access to electronic information.

3(c) A government entity may access electronic device
4information by means of physical interaction or electronic
5communication with the device only as follows:

6(1) Pursuant to a warrant issued pursuant to Chapter 3
7(commencing with Section 1523) and subject to subdivision (d).

8(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
9(commencing with Section 629.50) of Title 15 of Part 1.

begin insert

10
(3) Pursuant to a tracking device search warrant issued
11pursuant to paragraph (12) of subdivision (a) of Section 1524 and
12subdivision (b) of Section 1534.

end insert
begin delete

13(3)

end delete

14begin insert(4)end insert With the specific consent of the authorized possessor of the
15device.

begin delete

16(4)

end delete

17begin insert(5)end insert With the specific consent of the owner of the device, only
18when the device has been reported as lost or stolen.

begin delete

19(5)

end delete

20begin insert(6)end insert If the government entity, in good faith, believes that an
21emergency involving danger of death or serious physical injury to
22any person requires access to the electronic device information.

begin delete

23(6)

end delete

24begin insert(7)end insert If the government entity, in good faith, believes the device
25to be lost, stolen, or abandoned, provided that the government
26entity shall only access electronic device information in order to
27attempt to identify, verify, or contact the owner or authorized
28possessor of the device.

begin delete

29(7)

end delete

30begin insert(8)end insert Except where prohibited by state or federal law, if the device
31is seized from an inmate’s possession or found in an area of a
32correctional facility or a secure area of a local detention facility
33where inmates have access, the device is not in the possession of
34an individual, and the device is not known or believed to be the
35possession of an authorized visitor. This paragraph shall not be
36construed to supersede or override Section 4576.

begin delete

37(8)

end delete

38begin insert(9)end insert Except where prohibited by state or federal law, if the device
39is seized from an authorized possessor of the device who is serving
40a term of parole under the supervision of the Department of
P8    1Corrections andbegin delete Rehabilitation.end deletebegin insert Rehabilitation or a term of
2postrelease community supervision under the supervision of county
3probation.end insert

begin delete

4(9)

end delete

5begin insert(10)end insert Except where prohibited by state or federal law, if the
6device is seized from an authorized possessor of the device who
7is subject to an electronic device search as a clear and unambiguous
8condition of probation, begin deletepostrelease community supervision, end delete
9mandatory supervision, or pretrial release.

begin delete

10(10)

end delete

11begin insert(11)end insert If the government entity accesses information concerning
12the location or the telephone number of the electronic device in
13order to respond to an emergency 911 call from that device.

14(d) Any warrant for electronic information shall comply with
15the following:

16(1) The warrant shall describe with particularity the information
17to be seized by specifying, as appropriate and reasonable, the time
18periods covered, the target individuals or accounts, the applications
19or services covered, and the types of information sought, provided,
20however, that in the case of a warrant described in paragraph (1)
21of subdivision (c), the court may determine that it is not appropriate
22to specify time periods because of the specific circumstances of
23the investigation, including, but not limited to, the nature of the
24device to be searched.

25(2) The warrant shall require that any information obtained
26through the execution of the warrant that is unrelated to the
27objective of the warrant shall be sealed and shall not be subject to
28further review, use, or disclosure except pursuant to a court order
29or to comply with discovery as required by Sections 1054.1 and
301054.7. A court shall issue such an order upon a finding that there
31is probable cause to believe that the information is relevant to an
32active investigation, or review, use, or disclosure is required by
33state or federal law.

34(3) The warrant shall comply with all other provisions of
35California and federal law, including any provisions prohibiting,
36limiting, or imposing additional requirements on the use of search
37warrants. If directed to a service provider, the warrant shall be
38accompanied by an order requiring the service provider to verify
39the authenticity of electronic information that it produces by
40providing an affidavit that complies with the requirements set forth
P9    1in Section 1561 of the Evidence Code. Admission of that
2information into evidence shall be subject to Section 1562 of the
3Evidence Code.

4(e) When issuing any warrant or order for electronic information,
5or upon the petition from the target or recipient of the warrant or
6order, a court may, at its discretion, do either or both of the
7following:

8(1) Appoint a special master, as described in subdivision (d) of
9Section 1524, charged with ensuring that only information
10necessary to achieve the objective of the warrant or order is
11produced or accessed.

12(2) Require that any information obtained through the execution
13of the warrant or order that is unrelated to the objective of the
14warrant be destroyed as soon as feasible after the termination of
15the current investigation and any related investigations or
16proceedings.

17(f) A service provider may voluntarily disclose electronic
18communication information or subscriber information when that
19disclosure is not otherwise prohibited by state or federal law.

20(g) If a government entity receives electronic communication
21information voluntarily provided pursuant to subdivision (f), it
22shall destroy that information within 90 days unless one or more
23of the following circumstances apply:

24(1) The government entity has or obtains the specific consent
25of the sender or recipient of the electronic communications about
26which information was disclosed.

27(2) The government entity obtains a court order authorizing the
28retention of the information. A court shall issue a retention order
29upon a finding that the conditions justifying the initial voluntary
30disclosure persist, in which case the court shall authorize the
31retention of the information only for so long as those conditions
32persist, or there is probable cause to believe that the information
33constitutes evidence that a crime has been committed.

34(3) The government entity reasonably believes that the
35information relates to child pornography and the information is
36retained as part of a multiagency database used in the investigation
37of child pornography and related crimes.

38(4) The service provider or subscriber is, or discloses the
39information to, a federal, state, or local prison, jail, or juvenile
40detention facility, and all participants to the electronic
P10   1communication were informed, prior to the communication, that
2the service provider may disclose the information to the
3government entity.

4(h) If a government entity obtains electronic information
5pursuant to an emergency involving danger of death or serious
6physical injury to a person, that requires access to the electronic
7information without delay, the government entity shall, within
8three court days after obtaining the electronic information, file
9with the appropriate court an application for a warrant or order
10authorizing obtaining the electronic information or a motion
11seeking approval of the emergency disclosures that shall set forth
12the facts giving rise to the emergency, and if applicable, a request
13supported by a sworn affidavit for an order delaying notification
14under paragraph (1) of subdivision (b) of Section 1546.2. The court
15shall promptly rule on the application or motion and shall order
16the immediate destruction of all information obtained, and
17immediate notification pursuant to subdivision (a) of Section
181546.2 if that notice has not already been given, upon a finding
19that the facts did not give rise to an emergency or upon rejecting
20the warrant or order application on any other ground. This
21subdivision does not apply if the government entity obtains
22information concerning the location or the telephone number of
23the electronic device in order to respond to an emergency 911 call
24from that device.

25(i) This section does not limit the authority of a government
26entity to use an administrative, grand jury, trial, or civil discovery
27subpoena to do any of the following:

28(1) Require an originator, addressee, or intended recipient of
29an electronic communication to disclose any electronic
30communication information associated with that communication.

31(2) Require an entity that provides electronic communications
32services to its officers, directors, employees, or agents for the
33purpose of carrying out their duties, to disclose electronic
34communication information associated with an electronic
35communication to or from an officer, director, employee, or agent
36of the entity.

37(3) Require a service provider to provide subscriber information.

begin insert

38
(j) This section does not limit the authority of the Public Utilities
39Commission or the State Energy Resources Conservation and
40Development Commission to obtain energy or water supply and
P11   1consumption information pursuant to the powers granted to them
2under the Public Utilities Code or the Public Resources Code and
3other applicable state laws.

end insert
begin delete

4(j) Nothing in this chapter shall

end delete

5begin insert(k)end insertbegin insertend insertbegin insertThis chapter shall notend insert be construed to alter the authority of
6a government entity that owns an electronic device to compel an
7employee who is authorized to possess the device to return the
8device to the government entity’s possession.

9begin insert

begin insertSEC. 3.5.end insert  

end insert

begin insertSection 1546.1 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
10read:end insert

11

1546.1.  

(a) Except as provided in this section, a government
12entity shall not do any of the following:

13(1) Compel the production of or access to electronic
14communication information from a service provider.

15(2) Compel the production of or access to electronic device
16information from any person or entity other than the authorized
17possessor of the device.

18(3) Access electronic device information by means of physical
19interaction or electronic communication with the electronic device.
20This section does not prohibit the intended recipient of an electronic
21communication from voluntarily disclosing electronic
22communication information concerning that communication to a
23government entity.

24(b) A government entity may compel the production of or access
25to electronic communication information from a service provider,
26or compel the production of or access to electronic device
27information from any person or entity other than the authorized
28possessor of the device only under the following circumstances:

29(1) Pursuant to a warrant issued pursuant to Chapter 3
30(commencing with Section 1523) and subject to subdivision (d).

31(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
32(commencing with Section 629.50) of Title 15 of Part 1.

33(3) Pursuant to an order for electronic reader records issued
34pursuant to Section 1798.90 of the Civil Code.

35(4) Pursuant to a subpoena issued pursuant to existing state law,
36provided that the information is not sought for the purpose of
37investigating or prosecuting a criminal offense, and compelling
38the production of or access to the information via the subpoena is
39not otherwise prohibited by state or federal law. Nothing in this
P12   1paragraph shall be construed to expand any authority under state
2law to compel the production of or access to electronic information.

begin insert

3
(5) Pursuant to an order for a pen register or trap and trace
4device, or both, issued pursuant to Chapter 1.5 (commencing with
5Section 630) of Title 15 of Part 1.

end insert

6(c) A government entity may access electronic device
7information by means of physical interaction or electronic
8communication with the device only as follows:

9(1) Pursuant to a warrant issued pursuant to Chapter 3
10(commencing with Section 1523) and subject to subdivision (d).

11(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
12(commencing with Section 629.50) of Title 15 of Part 1.

begin insert

13
(3) Pursuant to a tracking device search warrant issued
14pursuant to paragraph (12) of subdivision (a) of Section 1524 and
15subdivision (b) of Section 1534.

end insert
begin delete

16(3)

end delete

17begin insert(4)end insert With the specific consent of the authorized possessor of the
18device.

begin delete

19(4)

end delete

20begin insert(5)end insert With the specific consent of the owner of the device, only
21when the device has been reported as lost or stolen.

begin delete

22(5)

end delete

23begin insert(6)end insert If the government entity, in good faith, believes that an
24emergency involving danger of death or serious physical injury to
25any person requires access to the electronic device information.

begin delete

26(6)

end delete

27begin insert(7)end insert If the government entity, in good faith, believes the device
28to be lost, stolen, or abandoned, provided that thebegin insert governmentend insert
29 entity shall only access electronic device information in order to
30attempt to identify, verify, or contact the owner or authorized
31possessor of the device.

begin delete

32(7)

end delete

33begin insert(8)end insert Except where prohibited by state or federal law, if the device
34is seized from an inmate’s possession or found in an area of a
35correctional facilitybegin delete under the jurisdiction of the Department of
36Corrections and Rehabilitationend delete
begin insert or a secure area of a local detention
37facilityend insert
where inmates havebegin delete access andend deletebegin insert access,end insert the device is not in
38the possession of anbegin delete individualend deletebegin insert individual,end insert and the device is not
39known or believed to be the possession of an authorized visitor.
P13   1begin delete Nothing in thisend deletebegin insert Thisend insert paragraph shallbegin insert notend insert be construed to supersede
2or override Section 4576.

begin insert

3
(9) Except where prohibited by state or federal law, if the device
4is seized from an authorized possessor of the device who is serving
5a term of parole under the supervision of the Department of
6Corrections and Rehabilitation or a term of postrelease community
7supervision under the supervision of county probation.

end insert
begin insert

8
(10) Except where prohibited by state or federal law, if the
9device is seized from an authorized possessor of the device who
10is subject to an electronic device search as a clear and
11unambiguous condition of probation, mandatory supervision, or
12pretrial release.

end insert
begin insert

13
(11) If the government entity accesses information concerning
14the location or the telephone number of the electronic device in
15order to respond to an emergency 911 call from that device.

end insert
begin insert

16
(12) Pursuant to an order for a pen register or trap and trace
17device, or both, issued pursuant to Chapter 1.5 (commencing with
18Section 630) of Title 15 of Part 1.

end insert

19(d) Any warrant for electronic information shall comply with
20the following:

21(1) The warrant shall describe with particularity the information
22to be seized bybegin delete specifying the time periods covered and,end deletebegin insert specifying,end insert
23 as appropriate and reasonable, thebegin insert time periods covered, theend insert target
24individuals or accounts, the applications or services covered, and
25the types of informationbegin delete sought.end deletebegin insert sought, provided, however, that
26in the case of a warrant described in paragraph (1) of subdivision
27(c), the court may determine that it is not appropriate to specify
28time periods because of the specific circumstances of the
29investigation, including, but not limited to, the nature of the device
30to be searched.end insert

31(2) The warrant shall require that any information obtained
32through the execution of the warrant that is unrelated to the
33objective of the warrant shall be sealed andbegin delete notend deletebegin insert shall not beend insert subject
34to further review, use, or disclosurebegin delete without a court order.end deletebegin insert except
35pursuant to a court order or to comply with discovery as required
36by Sections 1054.1 and 1054.7.end insert
A court shall issue such an order
37upon a finding that there is probable cause to believe that the
38information is relevant to an active investigation, or review, use,
39or disclosure is required by state or federal law.

P14   1(3) The warrant shall comply with all other provisions of
2California and federal law, including any provisions prohibiting,
3limiting, or imposing additional requirements on the use of search
4warrants. If directed to a service provider, the warrant shall be
5accompanied by an order requiring the service provider to verify
6the authenticity of electronic information that it produces by
7providing an affidavit that complies with the requirements set forth
8in Section 1561 of the Evidence Code. Admission of that
9information into evidence shall be subject to Section 1562 of the
10Evidence Code.

11(e) When issuing any warrant or order for electronic information,
12or upon the petition from the target or recipient of the warrant or
13order, a court may, at its discretion, do begin deleteany or allend deletebegin insert either or bothend insert of
14the following:

15(1) Appoint a special master, as described in subdivision (d) of
16Section 1524, charged with ensuring that only information
17necessary to achieve the objective of the warrant or order is
18produced or accessed.

19(2) Require that any information obtained through the execution
20of the warrant or order that is unrelated to the objective of the
21warrant be destroyed as soon as feasible after the termination of
22the current investigation and any related investigations or
23proceedings.

24(f) A service provider may voluntarily disclose electronic
25communication information or subscriber information when that
26disclosure is not otherwise prohibited by state or federal law.

27(g) If a government entity receives electronic communication
28information voluntarily provided pursuant to subdivision (f), it
29shall destroy that information within 90 days unless one or more
30of the following circumstances apply:

31(1) Thebegin insert governmentend insert entity has or obtains the specific consent
32of the sender or recipient of the electronic communications about
33which information was disclosed.

34(2) Thebegin insert governmentend insert entity obtains a court order authorizing the
35retention of the information. A court shall issue a retention order
36upon a finding that the conditions justifying the initial voluntary
37disclosure persist, in which case the court shall authorize the
38retention of the information only for so long as those conditions
39persist, or there is probable cause to believe that the information
40constitutes evidence that a crime has been committed.

P15   1(3) Thebegin insert governmentend insert entity reasonably believes that the
2information relates to child pornography and the information is
3retained as part of a multiagency database used in the investigation
4of child pornography and related crimes.

begin insert

5
(4) The service provider or subscriber is, or discloses the
6information to, a federal, state, or local prison, jail, or juvenile
7detention facility, and all participants to the electronic
8communication were informed, prior to the communication, that
9the service provider may disclose the information to the
10government entity.

end insert

11(h) If a government entity obtains electronic information
12pursuant to an emergency involving danger of death or serious
13physical injury to a person, that requires access to the electronic
14information without delay, thebegin insert governmentend insert entity shall, within
15threebegin insert courtend insert days after obtaining the electronic information, file
16with the appropriate court an application for a warrant or order
17 authorizing obtaining the electronic information or a motion
18seeking approval of the emergency disclosures that shall set forth
19the facts giving rise to the emergency, and if applicable, a request
20supported by a sworn affidavit for an order delaying notification
21under paragraph (1) of subdivision (b) of Section 1546.2. The court
22shall promptly rule on the application or motion and shall order
23the immediate destruction of all information obtained, and
24immediate notification pursuant to subdivision (a) of Section
251546.2 ifbegin delete suchend deletebegin insert thatend insert notice has not already been given, upon a
26finding that the facts did not give rise to an emergency or upon
27rejecting the warrant or order application on any other ground.
28
begin insert This subdivision does not apply if the government entity obtains
29information concerning the location or the telephone number of
30the electronic device in order to respond to an emergency 911 call
31from that device.end insert

32(i) This section does not limit the authority of a government
33entity to use an administrative, grand jury, trial, or civil discovery
34subpoena to do any of the following:

35(1) Require an originator, addressee, or intended recipient of
36an electronic communication to disclose any electronic
37communication information associated with that communication.

38(2) Require an entity that provides electronic communications
39services to its officers, directors, employees, or agents for the
40purpose of carrying out their duties, to disclose electronic
P16   1communication information associated with an electronic
2communication to or from an officer, director, employee, or agent
3of the entity.

4(3) Require a service provider to provide subscriber information.

begin insert

5
(j) This section does not limit the authority of the Public Utilities
6Commission or the State Energy Resources Conservation and
7Development Commission to obtain energy or water supply and
8consumption information pursuant to the powers granted to them
9under the Public Utilities Code or the Public Resources Code and
10other applicable state laws.

end insert
begin insert

11
(k) This chapter shall not be construed to alter the authority of
12a government entity that owns an electronic device to compel an
13employee who is authorized to possess the device to return the
14device to the government entity’s possession.

end insert
15

begin deleteSEC. 3.end delete
16
begin insertSEC. 4.end insert  

Section 1546.2 of the Penal Code is amended to read:

17

1546.2.  

(a) Except as otherwise provided in this section, any
18government entity that executes a warrant, or obtains electronic
19information in an emergency pursuant to Section 1546.1, shall
20serve upon, or deliver to by registered or first-class mail, electronic
21mail, or other means reasonably calculated to be effective, the
22identified targets of the warrant or emergency access, a notice that
23informs the recipient that information about the recipient has been
24compelled or obtained, and states with reasonable specificity the
25nature of the government investigation under which the information
26is sought. The notice shall include a copy of the warrant or a written
27statement setting forth facts giving rise to the emergency. The
28notice shall be provided contemporaneously with the execution of
29a warrant, or, in the case of an emergency, within three court days
30after obtaining the electronic information.

31(b) (1) When a warrant is sought or electronic information is
32obtained in an emergency under Section 1546.1, the government
33entity may submit a request supported by a sworn affidavit for an
34order delaying notification and prohibiting any party providing
35information from notifying any other party that information has
36been sought. The court shall issue the order if the court determines
37that there is reason to believe that notification may have an adverse
38result, but only for the period of time that the court finds there is
39reason to believe that the notification may have that adverse result,
40and not to exceed 90 days.

P17   1(2) The court may grant extensions of the delay of up to 90 days
2each on the same grounds as provided in paragraph (1).

3(3) Upon expiration of the period of delay of the notification,
4the government entity shall serve upon, or deliver to by registered
5or first-class mail, electronic mail, or other means reasonably
6calculated to be effective as specified by the court issuing the order
7authorizing delayed notification, the identified targets of the
8 warrant or emergency access, a document that includes the
9information described in subdivision (a), a copy of all electronic
10information obtained or a summary of that information, including,
11at a minimum, the number and types of records disclosed, the date
12and time when the earliest and latest records were created, and a
13statement of the grounds for the court’s determination to grant a
14delay in notifying the individual.

15(c) If there is no identified target of a warrant or emergency
16access at the time of its issuance, the government entity shall
17submit to the Department of Justice within three days of the
18execution of the warrant or issuance of the request all of the
19information required in subdivision (a). If an order delaying notice
20is obtained pursuant to subdivision (b), the government entity shall
21submit to the department upon the expiration of the period of delay
22of the notification all of the information required in paragraph (3)
23of subdivision (b). The department shall publish all those reports
24on its Internet Web site within 90 days of receipt. The department
25may redact names or other personal identifying information from
26the reports.

27(d) Except as otherwise provided in this section, nothing in this
28chapter shall prohibit or limit a service provider or any other party
29from disclosing information about any request or demand for
30electronic information.

31begin insert

begin insertSEC. 5.end insert  

end insert
begin insert

Section 3.5 of this bill incorporates amendments to
32Section 1546.1 of the Penal Code proposed by this bill and
33Assembly Bill 1924. It shall only become operative if (1) both bills
34are enacted and become effective on or before January 1, 2017,
35(2) each bill amends Section 1546.1 of the Penal Code, and (3)
36this bill is enacted after Assembly Bill 1924, in which case Section
371546.1 of the Penal Code, as amended by Assembly Bill 1924,
38shall remain operative only until the operative date of this bill, at
P18   1which time Section 3.5 of this bill shall become operative, and
2Section 3 of this bill shall not become operative.

end insert


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