BILL ANALYSIS Ó
SB 1121
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
SB
1121 (Leno) - As Amended June 14, 2016
SENATE VOTE: 36-0
SUBJECT: Privacy: electronic communications: search warrant
SUMMARY: Revises the California Electronic Communications
Privacy Act (CalECPA) to authorize a government entity to access
without a warrant the location and phone number of an electronic
device used to call the 911 emergency communications system;
allow a government entity to retain voluntarily received
electronic communication information beyond 90 days if the
service provider, subscriber or recipient is a correctional or
detention facility; and exclude driver's licenses and other
identification cards from its provisions. Specifically, this
bill:
1)Clarifies that the definition of an "electronic device" does
not include the magnetic strip on a driver's license or an
identification card issued by this state or a driver's license
or equivalent identification card issued by another state.
2)Clarifies that a government entity may access electronic
device information by means of physical interaction or
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electronic communication with the device, except where
prohibited by state or federal law, if the device is found in
an area of any correctional facility or a secure area of a
local detention facility where inmates have access, not just
areas under the jurisdiction of the Department of Corrections
and Rehabilitation.
3)Authorizes a government entity to access electronic device
information by means of physical interaction or electronic
communication with the device if the government entity
accesses information concerning the location or the telephone
number of the electronic device in order to respond to an
emergency 911 call.
4)Clarifies that, in granting a warrant for electronic
information, a court may determine that the warrant need not
specify time periods because of the specific circumstances of
the investigation, including, but not limited to, the nature
of the device to be searched.
5)Clarifies that, in granting a warrant for electronic
information, information obtained through the execution of the
warrant must be sealed and may not be subject to further
review, use or disclosure, except pursuant to a court order or
to comply with discovery requirements, as specified.
6)Requires a government entity, if it receives electronic
communication information that was voluntarily provided, to
destroy that information within 90 days unless 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.
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7)Clarifies that 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 government
entity must file an application for a warrant or order, or a
motion of approval of the disclosures, within three court
days, as specified.
8)Clarifies that a government entity that obtains electronic
information pursuant to an emergency involving danger of death
or serious physical injury to a person, the government entity
need not file an application for a warrant or order, or a
motion of approval of the disclosures, if the government
entity obtains information concerning the location of the
electronic device in order to respond to an emergency 911
call.
9)Clarifies that any government entity that obtains electronic
information in an emergency situation must serve notice on the
identified target, as specified, within three court days after
obtaining the electronic information.
10)Clarifies that the provisions of CalECPA may not be construed
to alter the authority of a government entity that owns an
electronic device to compel an employee who is authorized to
possess the device to return the device to the government
entity's possession.
11)Makes other technical or nonsubstantive changes.
EXISTING LAW:
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1)Provides, pursuant to the U.S. Constitution, that "the right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched an the
persons or things to be seized." (U.S. Const. amend. IV)
2)Enacts CalECPA, which generally prohibits a government entity
from 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 issued pursuant to specified
conditions, except for emergency situations. CalECPA also
generally 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. (Penal Code (PC)
Section 1546-1546.4)
3)Prohibits a government entity from 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 issued pursuant to specified conditions, except for
emergency situations. (PC 1546.1)
4)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. (PC 1546.1)
5)Authorizes a service provider to voluntarily disclose
electronic communication information or subscriber
information, and requires a government entity to destroy that
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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. (PC 1546.2)
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, any additional state
costs are not significant, and do not and will not require the
appropriation of additional state funds, and the bill will cause
no significant reduction in revenues.
COMMENTS:
1)Purpose of this bill . This bill is intended as a follow-up
measure to last year's SB 178 (Leno), the state's Electronic
Communications Privacy Act (CalECPA) which revises the laws
controlling how government entities may access electronic
communications information and devices. This bill would enact
minor changes, additions and clarifications to CalECPA in
order to address a variety of unintended consequences and
outstanding stakeholder concerns. SB 1121 is
author-sponsored.
2)Author's statement . According to the author's office,
"Through the implementation process of CalECPA, several
technical, clarifying changes have been identified that will
improve compliance with the new law. This bill addresses
those concerns and is a clean-up bill to SB 178."
3)CalECPA clean-up . This bill is intended to codify a variety
of changes requested by various stakeholders in the law
enforcement community as they pertain to CalECPA, originally
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enacted as SB 178 (Leno) in 2015.
According to the author, "SB 178 was enacted to properly
safeguard the robust constitutional privacy and free speech
rights of Californians, spur innovation, and support public
safety by instituting clear probable cause warrant
requirements for government access to electronic information,
including data from electronic devices, emails, cloud storage,
digital documents, text messages, metadata, and location
information. Each of these categories can reveal sensitive
information about a Californian's personal life: her friends
and associates, her physical and mental health, her religious
and political beliefs, and more. The California Supreme Court
has long held that this type of information constitutes a
'virtual current biography' that merits constitutional
protection. CalECPA codified these protections. SB 178 also
requires proper notice and reporting and has robust
enforcement provisions, including a suppression remedy, to
ensure that the law is followed."
While the bulk of the changes contained in the current version
of this bill are specific to the public safety community, some
touch on matters relevant to individual privacy. For example,
this bill would exclude driver's licenses and similar forms of
identification from the restrictions on government entity
access to electronic devices, so as not to interfere with
commonplace and legitimate use of such cards. It also allows
a government entity to access information about a cellphone's
location and phone number in responding to an emergency 911
call, and expands the retention period beyond 90 days for
electronic communication information voluntarily provided by
or to a correctional or detention facility.
4)Technical amendment . One of the provisions of this bill would
permit government entities to directly or remotely access an
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electronic device in order to respond to an emergency 911
call. In order to prevent any potential confusion, a technical
amendment would clarify that the access is restricted to the
device that made the 911 call, and not any device.
Page 5, line 30, after the word "call" add "from that
device"
Page 8, line 2, after the word "call" add "from that device"
5)Related legislation . AB 1612 (Committee on Budget) is a
budget trailer bill that would, in part, clarify that the
provisions of CalECPA do not limit the authority of the Public
Utilities Commission or the Energy Commission to obtain energy
or water supply and consumption information pursuant to the
powers granted to them under existing state law. AB 1612 is
currently pending in the Senate Budget and Fiscal Review
Committee.
AB 1924 (Low) provides an exemption from CalECPA for pen
registers and trap and trace devices to permit authorization
for the devices to be used for 60 days. AB 1924 is currently
pending in the Senate Public Safety Committee.
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SB 840 (Committee on Budget and Fiscal Review) is a budget
trailer bill that would, in part, clarify that the provisions
of CalECPA do 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 existing state law. SB 840 is currently pending
concurrence on the Senate Floor.
Because each of these bills is active and amend the same code
section (Penal Code Section 1546.1), this bill, if passed by
this Committee, will likely require additional Floor
amendments to avoid chaptering-out conflicts.
6)Previous legislation . SB 178 (Leno), Chapter 651, Statutes of
2015, created 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.
SB 467 (Leno) of 2013 would have required a search warrant
when a governmental agency is seeking the contents of a wire
or electronic communication that is stored, held or maintained
by a provider. SB 467 was vetoed by Governor Brown, who
wrote: "The bill, however, imposes new notice requirements
that go beyond those required by federal law and could impede
ongoing criminal investigations. I do not think that is
wise."
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SB 1434 (Leno) of 2012 would have required a government entity
to get a search warrant in order to obtain the location
information of an electronic device. SB 1434 was vetoed by
Governor Brown, who wrote: "It may be that legislative action
is needed to keep the law current in our rapidly evolving
electronic age. But I am not convinced that this bill strikes
the right balance between the operational needs of law
enforcement and individual expectations of privacy."
SB 914 (Leno) of 2011 would have required a search warrant to
search the contents of a portable electronic device that is
found during a search incident to an arrest. SB 914 was
vetoed by Governor Brown, who wrote: "This measure would
overturn a California Supreme Court decision that held that
police officers can lawfully search the cell phones of people
who they arrest. The courts are better suited to resolve the
complex and case-specific issues relating to constitutional
search-and-seizures protections."
7)Double-referral . This bill is double-referred with the
Assembly Public Safety Committee, where this bill will be
heard if passed by this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union
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Opposition
None on file.
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916)
319-2200