BILL ANALYSIS Ó SB 1121 Page 1 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 SB 1121 Page 2 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. SB 1121 Page 3 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: SB 1121 Page 4 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 SB 1121 Page 5 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 SB 1121 Page 6 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 SB 1121 Page 7 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. SB 1121 Page 8 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." SB 1121 Page 9 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 SB 1121 Page 10 Opposition None on file. Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200