BILL ANALYSIS                                                                                                                                                                                                    Ó



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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