BILL ANALYSIS Ó
SB 1121
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Date of Hearing: June 28, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1121 (Leno) - As Amended June 23, 2016
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 911; allows 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 excludes driver's
licenses and other identification cards from its provisions.
Specifically, this bill:
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1)Excludes from the definition of an "electronic device" the
magnetic stripe on a driver's license or identification card
issued by this state or a driver's license or equivalent
identification card issued by another state.
2)Clarifies that that a government entity may access electronic
device information by means of physical interaction or
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 California Department of
Corrections and Rehabilitation.
3)Provides that emergency responders may access location
information from a device making a 911 call without being
subject to additional limitations or requirements.
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)Provides that electronic communications information disclosed
by prisons, jails, or juvenile detention facilities is not
subject to mandatory deletion after 90 days if all parties to
the communication were informed that the facility may disclose
the information.
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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)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. (Pen. Code, §§
1546-1546.4.)
2)Provides that a government entity may access electronic device
information by means of a physical interaction or electronic
communication device only: pursuant to a warrant; wiretap;
with authorization of the possessor of the device; with
consent of the owner of the device; in an emergency; if seized
from an inmate. (Pen. Code, § 1546.1, subd. (b).)
3)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. (Pen. Code, § 1546.1, subd. (c).)
4)Allows a service provider to voluntarily disclose electronic
communication information or subscriber information, when the
disclosure is not otherwise prohibited under state or federal
law. (Pen. Code, § 1546.1, subd. (f).)
5)Provides that if a government entity receives electronic
communication voluntarily it shall destroy that information
within 90 days except under specified circumstances. (Pen.
Code, § 1546.1, subd. (g).)
6)Provides for notice to the target of a warrant or an emergency
obtaining electronic information to be provided either
contemporaneously with the service of the warrant or within
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three days in an emergency situation. (Pen. Code, § 1546.2,
subd. (a).)
7)Allows a person in a trial, hearing, or proceeding to move to
suppress any electronic information obtained or retained in
violation of the Fourth Amendment or the CalECPA. (Pen. Code,
§ 1546.4, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "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."
2)Necessity for this Bill: This bill is intended to codify a
variety of changes requested by various stakeholders in the
law enforcement community as they pertain to CalECPA, which
was enacted last year. CalECPA generally extends the warrant
requirement to electronic communication information or
electronic device information. The CalECPA also requires
proper notice and reporting and has enforcement provisions,
including a suppression remedy, to ensure the law is followed.
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As CalECPA has been implemented, several technical, clarifying,
or clean up changes have been identified. This bill makes
revisions to CalECPA to address those issues.
3)Argument in Support: According to the American Civil
Liberties Union of California, "SB 178, the California
Electronic Privacy Act (Cal-ECPA), protected the electronic
privacy rights of Californians by generally requiring the use
of a warrant to access that information. SB 1121 is the
vehicle to address ambiguities in the language of the Act and
make appropriate amendments consistent with the intent of SB
178. The current version of SB 1121 reflects that commitment
by, for example, clarifying that Cal-ECPA does not impact the
ability of the 911 emergency communications system to access
location of the electronic device."
4)Related Legislation:
a) 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 pending hearing in the Senate Public Safety
Committee.
b) SB 178 (Leno), Chapter 651, Statutes of 2015, prohibits
a government entity from compelling the production of, or
access to, electronic-communication information or
electronic-device information without a search warrant or
wiretap order, except under specified emergency situations.
5)Prior Legislation:
a) SB 467 (Leno) of the 2013-2014 Legislative Session,
would have required a search warrant when a governmental
agency seeks to obtain the contents of a wire or electronic
communication that is stored, held or maintained by a
provider of electronic communication services or remote
computing services. SB 467 was vetoed.
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b) SB 1434 (Leno), of the 2011-12 Legislative Session,
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.
c) SB 914 (Leno), of the 2011-2012 Legislative Session,
would have restricted the authority of law enforcement to
search portable electronic devices without obtaining a
search warrant. SB 914 was vetoed.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union
Opposition
None
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Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744