BILL ANALYSIS Ó
SB 1121
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SENATE THIRD READING
SB
1121 (Leno)
As Amended August 1, 2016
Majority vote
SENATE VOTE: 36-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Privacy |11-0 |Chau, Wilk, Baker, | |
| | |Calderon, Chang, | |
| | |Cooper, Dababneh, | |
| | |Gatto, Gordon, Low, | |
| | |Olsen | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |7-0 |Jones-Sawyer, | |
| | |Melendez, Lackey, | |
| | |Lopez, Low, Quirk, | |
| | |Santiago | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |19-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
SB 1121
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| | |Daly, Eggman, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Holden, Jones, | |
| | |Obernolte, Quirk, | |
| | |Santiago, Wagner, | |
| | |Weber, Wood, Chu | |
| | | | |
| | | | |
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SUMMARY: Revises the California Electronic Communications
Privacy Act (CalECPA) to authorize a government entity to
access, without a warrant, the location or 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 or subscriber
is or discloses information to, a correctional or detention
facility; and excludes 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
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
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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 device is seized from an
authorized possessor who is serving a term of parole, as
specified.
4)Authorizes a government entity to access electronic device
information by means of physical interaction or electronic
communication with the device if the device is seized from an
authorized possessor who is subject to an electronic device
search as a clear and unambiguous condition of probation,
postrelease community supervision, mandatory supervision, or
pretrial release, as specified.
5)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 from that device
6)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.
7)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.
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8)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.
9)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.
10)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
from that device.
11)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.
12)Clarifies that the provisions of CalECPA may not be construed
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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.
13)Makes other technical or nonsubstantive changes.
EXISTING LAW:
1)Provides, pursuant to the United States (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 and the
persons or things to be seized." (U.S. Constitution amendment
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,
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wiretap order, order for electronic reader records, or
subpoena issued pursuant to specified conditions, except for
emergency situations. (PC Section 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 Section 1546.1)
5)Authorizes a service provider to voluntarily disclose
electronic communication information or subscriber
information, and requires a government entity to destroy that
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 Section 1546.2)
FISCAL EFFECT: According to the Assembly Appropriations
Committee, there is a negligible state fiscal impact.
COMMENTS: This bill is intended as a follow-up measure to last
year's SB 178 (Leno), Chapter 651, Statutes of 2015, the state's
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.
Analysis Prepared by:
Hank Dempsey / P. & C.P. / (916) 319-2200 FN:
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