BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1434 (Leno) 4
As Amended April 9, 2012
Hearing date: April 24, 2012
Penal Code
MK:dl
LOCATION INFORMATION:
WARRANTS
HISTORY
Source: American Civil Liberties Union; Electronic Frontier
Foundation
Prior Legislation: SB 914 (Leno) - Vetoed, 2011
Support: California Public Defenders Association
Opposition:CTIA-the Wireless Association
(Note: This analysis reflects author's amendments to be offered
in Committee. See Comment 7.)
KEY ISSUE
SHOULD THE LAW PROVIDE THAT NO GOVERNMENT ENTITY SHALL OBTAIN THE
LOCATION INFORMATION OF AN ELECTRONIC DEVICE WITHOUT A VALID SEARCH
WARRANT ISSUED BY A DULY AUTHORIZED MAGISTRATE?
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PURPOSE
The purpose of the bill is to provide that no government entity
shall obtain the location information of an electronic device
without a valid search warrant issued by a duly authorized
magistrate.
The US Constitution provides 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. (4th Amendment
of the U.S. Constitution)
The California Constitution provides that the right of the
people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized. (Article I,
Section 13 of the California Constitution)
Existing law defines a search warrant as an order in writing in
the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code � 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of
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any person with the intent to use them as a means of
committing a public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
d) When the property or things to be seized consist of
any item or constitute any evidence that tends to show a
felony has been committed, or tends to show that a
particular person has committed a felony.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of
a child, or possession of matter depicting sexual conduct
of a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication
service or remote computing service
has records or evidence, showing that property was stolen
or embezzled constituting a misdemeanor, or that
property or things are in the possession of any person
with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing their discovery.
(Penal Code � 1524(a).)
Existing law sets forth procedures for a search warrant issued
for records of a foreign corporation that provides electronic
communication services or remote computing services to the
general public, where those records would reveal the identity of
the customers using services, data stored by, or on behalf of,
the customer, the customer's usage of those services, the
recipient or destination of communications sent tow or from
those customers, or the content of those communications. (Penal
Code � 154.2.)
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Existing law provides that a provider of electronic
communication or remote computing service shall disclose to a
governmental prosecuting or investigating agency the name,
address, local and long distance toll billing records, telephone
number or other subscriber number or identity, and length of
service of as subscriber to or customer of that service and
types of services the subscriber or customer utilized when the
governmental entity is granted a search warrant. (Penal Code �
1524.3(a).)
Existing law provides that a provider of wire or electronic
communication services or a remote computing service, upon the
request of a peace officer, shall take all necessary steps to
preserve records and other evidence in its possession pending
the issuance of a search warrant or a request in writing and an
affidavit declaring an intent to file a warrant to the provider.
Records shall be retained of a period of 90 days which shall be
extended for an additional 90-day upon a renewed request by the
peace officer. (Penal Code � 1524.3(d).)
Exiting law provides that a search warrant cannot be issued but
upon probable cause, supported by affidavit, naming or
describing the person to be searched or searched for, and
particularly describing the property, thing or things and the
place to be searched. (Penal Code � 1525.)
This bill provides that no government entity shall obtain the
location information of an electronic device without a valid
search warrant issued by a duly authorized magistrate.
This bill would provide that no search warrant shall issue for
the location of an electronic device pursuant to this section
for a period of time longer than is necessary to achieve the
objective of the authorization, nor in any event longer than 30
days, commencing on the day of the initial obtaining of location
information, or 10 days after the issuance of the warrant,
whichever comes first.
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This bill , as proposed to be amended, provides that extensions
of a warrant may be granted, but only upon a finding of
continuing probable cause by the judge or magistrate, and that
the extension is necessary to achieve the objective of the
authorization. Each extension granted for a warrant pursuant to
this subdivision, shall be for no longer than the authorizing
judge or magistrate deems necessary to achieve the purposes for
which the warrant was originally granted, but in any event,
shall be for no longer than 30 days.
This bill provides that a government entity does not need a
warrant to obtain location information in the following
circumstances:
In order to respond to the user's call for emergency
services.
With the informed, affirmative consent of the owner or
user of the electronic device concerned, provided however
that the owner or user may not consent to the disclosure of
location information if the device is known or believed to
be in the possession of or attached to a possession of a
third party known to the owner or user.
Pursuant to a request by a government entity that
asserts that the governmental entity reasonably believes
that an emergency involving immediate danger of death or
serious physical injury to the owner or user requires the
immediate access to location information and there is
insufficient time to obtain a warrant. The government
entity seeking the location information pursuant to this
paragraph shall file with the appropriate court a written
statement setting forth the facts giving rise to the
emergency no later than 48 hours after seeking disclosure.
This bill provides that unless the disclosure of information
pertaining to a particular request or set of requests is
specifically prohibited by law, a provider shall prepare a
report which shall be made publicly available on the internet
and shall include all of the following information; to the
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extent it can be reasonably determined:
The number of federal and state warrants for location
information and the number of requests for location
information made with the informed consent of the user or
emergency requests received by the provider from January 1
to December 31 of the previous year.
The total number of disclosures made by the provider
pursuant to this bill from January 1 to December 31 of the
previous year.
For each category of demand or disclosure, the provider
shall include all of the following information:
o The number of times location information has
been disclosed by the provider.
o The number of times no location information
has been disclosed by the provider.
o The number of times the provider contests the
demand.
o The number of users whose location information
was disclosed by the provider.
This bill provides that except as proof of violation of this
section, no evidence obtained in violation of this section shall
be admissible in a civil or administrative proceeding.
This bill defines electronic communication service as a service
that provides to users thereof the ability to send or receive
wire or electronic communications.
This bill defines electronic device means a device that enables
access to, or use of, an electronic communication service,
remote computing service, or location information service.
This bill defines government entity to mean a state or local
agency, including, but not limited to, a law enforcement entity
or any other investigative entity, agency, department, division,
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bureau , board, or commission, or an individual acting or
purporting to act for or on behalf of a state or local agency.
This bill defines location information as information,
concerning the location of an electronic device including both
the current location of the device, and any prior location(s)
that in whole or in part, is generated, derived from, or
obtained by the operation of an electronic device.
This bill defines location information service to mean the
provision of a global positioning service or other mapping,
locational or directional information service.
This bill defines owner as the person or entity recognized by
the law as the legal title, claim, or right to, an electronic
device.
This bill defines provider as a commercial entity offering an
electronic communication service, remote computing service, or
location information service.
This bill defines remote computing service as the provision of
computer storage or processing service by means of an electronic
communications system.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
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prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
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prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
SB 1434 updates California privacy law to reflect the
modern mobile world of today by providing needed
protection against warrantless government access to a
person's location information that is generated,
derived from, or obtained by the operation of an
electronic device.
Most Californians are now carrying tracking devices on
their person every day- their mobile phones, tablets,
and more. While the location data from these devices
can make it easy to get directions or locate the
closest coffee shop, that location data also says a lot
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about them - where they go, what they do, and who they
know. Many location-aware technologies can pinpoint and
track a person's location in real time, as well as
record data to create a detailed log of a person's
whereabouts for months or even years.
State public records act requests have revealed that
law enforcement is increasingly taking advantage of
outdated privacy laws, written before GPS and other
location-aware technologies even existed, to access
this sensitive location information without adequate
judicial oversight.
Without strong safeguards for location information such
as those provided in SB 1434, Californians are left to
wonder and worry that if they use mobile technology,
their personal information will be left unprotected. By
creating clear and robust safeguards for location
information, SB 1434 will be good for both consumers
and providers of new technology.
In recent months, there has been considerable public
outcry over the issue of location data, privacy, and
the techniques of government surveillance. The subject
has even risen to the level of action by the highest
court in the nation. In January of this year, the
United States Supreme Court ruled unanimously in United
States v. Jones that a warrantless installation of a
GPS device to track a vehicle's movements constituted a
search in violation of the Fourth Amendment.
In Jones, the Court recognized that advancements in
technology have made it cheap and easy for law
enforcement to surreptitiously access and aggregate
massive amounts of location information that may
unjustifiably intrude on an individual's private life.
The decision and its implication with respect to
location data is already being felt throughout the
court system. In a two sentence order , the Ohio
Supreme Court vacated a lower court's opinion that
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upheld the installation of a GPS device without a
warrant, and ordered the court to apply Jones. In that
case, the Electronic Frontier Foundation and a number
of other civil liberties organizations filed an amicus
brief urging just such a result.
After issuing its opinion in Jones, the Supreme Court
in late February issued brief orders reversing two
other decisions from federal appellate courts that had
previously upheld the warrantless use of GPS tracking
devices by law enforcement. One of those decisions was
in United States v. Pineda-Moreno, where the Ninth
Circuit Court of Appeals found law enforcement's
installation of a GPS device on a suspect's Jeep while
it was parked both on public streets and in his
driveway did not violate the Fourth Amendment. In the
other case, United States v. Cuevas-Perez, law
enforcement installed a GPS device on a suspect's Jeep
and tracked him through New Mexico, Texas, Oklahoma,
Missouri, and Illinois. There, the Seventh Circuit
Court of Appeals found the surveillance reasonable
under the Fourth Amendment. The facts of these three
cases fit squarely with the holding in Jones, and it is
likely that on taking a second look, all three courts
will find the installation of a GPS device without a
warrant unconstitutional.
Outside of the judicial realm, location privacy and
limitations on law enforcement have begun to be
addressed through specific statutes as well. This is
consistent with the Jones decision as Justice Alito
encouraged this approach by stating that in
circumstances involving dramatic technological change,
the best solution to privacy concerns may be
legislative. A legislative body is well suited to gauge
changing public attitudes, to draw detailed lines, and
to balance privacy and public safety in a comprehensive
way.
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On the congressional level, following revelations about
how much location information Apple and Google had been
storing about their customers, Sen. Ron Wyden (D-OR)
and Rep. Jason Chaffetz (R-UT) introduced legislation,
S. 1212, to protect location privacy by requiring law
enforcement to get a warrant based on probable cause
before accessing location information. The measure
regulates the use of this information by businesses and
is intended to provide a strong and clear national
standard for law enforcement.
Similarly, SB 1434 heeds the call for legislative
action to resolve lingering privacy concerns left
unaddressed by the Jones Court. Under the provisions of
SB 1434, no government entity shall obtain the location
information of an electronic device without a warrant
issued by an officer of the court. SB 1434 also guards
against abuses of long-term monitoring by limiting
search warrants for location information to a timeframe
no longer than is necessary, and not to exceed 30 days.
The warrant requirement implemented under SB 1434 is
not overly burdensome and will not deny law enforcement
the information that they need to maintain public
safety and fight crime. Exceptions are provided in the
bill and judicial review simply ensures that
authorities have good cause before proceeding. The
standard required by SB 1434 is already the law in
Oregon where the state's Supreme Court held that
tracking is the equivalent of a search as defined by
the state constitution and ten other states have
pending legislation on this issue.
2. Search and Seizure Generally
The 4th Amendment of the US Constitution and Article I, Section
13 of the California Constitution protect people against
unreasonable searches and seizures. Generally, the lawfulness
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of a search of the items in the arrestee's immediate control is
based upon the need to protect the officer and to discover
evidence in the case. This has been found to include search of
items when a person is booked into jail on the theories that the
time lag is inconsequential; it is less of an invasion than a
public search at the place of arrest; is necessary for inventory
purposes; and, can protect from contraband being brought into
the jail. However, if the search is remote in time and the
property has been removed from the defendant's possession and is
in the control of the police, then a warrantless search has been
found not to be reasonable. Numerous cases have looked at this
issue of when a search incident to arrest is valid. (See for
example: U.S v. Robinson (1973) 414 U.S. 218; U.S. V. Edwards
(1974) 415 U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v.
Belton (1981) 453 U.S. 454; People v. Hamilton (1988) 46 C. 3d
123) ) After Proposition 8 (June 1982), in California, the scope
of a search incident to arrest is based on federal law thus
California courts will look to the federal courts for precedent
when deciding a case.
3. United States v. Jones
On January 23, 2012 the U.S. Supreme Court decided the case of
U.S. v. Jones (132 S.Ct. 945(2012)) and found that the
government's attachment of a GPS device to a vehicle and its use
of that device to monitor the vehicle's movements, constitutes a
search under the Fourth Amendment. In Jones, all members of the
Court found that the law enforcement's attachment and subsequent
monitoring of a GPS on a vehicle violated the 4th Amendment,
although with two concurring opinions, various Justices reached
that conclusion using different legal reasoning.
In Jones authorities obtained a search warrant to install a GPS
device on defendant's car as part of a drug trafficking
investigation. But, the authorities did not install the device
until after the warrant expired. The device was used to track
the defendant's movements for almost one month. When charges
were filed against defendant, he moved to suppress the GPS
evidence as the product of an illegal search. The prosecution
argued at trial and on appeal that a search within the meaning
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of the Fourth Amendment had not occurred because Jones did not
have a reasonable expectation of privacy in the location of his
vehicle on public streets, which was visible to all.
The Supreme Court found the government's use of a GPS monitoring
device is a search within the meaning of the Fourth Amendment,
and therefore must be reasonable. The majority decision was not
based on the reasonable expectation of privacy test for
challenges to law enforcement surveillance, which is generally
employed. (Katz v. U.S. (1967) 389 U.S. 347.) Instead, the
majority based its decision on common law trespass principals,
holding that attaching a GPS device to a vehicle (an effect) for
purposes of data collection constitutes a search because the
government physically occupied private property for the purpose
of information gathering. But five of the justices (the four
members of the Alito concurrence, plus Justice Sotomayor) were
critical of the trespass theory, stating the majority should
have used the reasonable expectation of privacy test.
While the Court's decision established that the use of a
tracking device qualifies as a search, the opinion left open
other questions. First, the Court left open the questions of
whether a warrant is required for these types of searches and
whether it requires probable cause, as opposed to a lesser
standard like reasonable suspicion. The Court also did not
answer the question of how it might apply the Fourth Amendment
to law enforcement data collection that does not require a
physical intrusion, such as where GPS or toll paying devices are
installed or used by the owner and the information they produce
are mined by law enforcement authorities. Although, the Court
did suggest that the expectation of privacy analysis would
apply, and four Justices concurred with the majority that this
would be the proper analysis.
4. Clarifying the Warrant Requirements in California
Because Jones left law enforcement in a position where they
cannot use GPS to track a vehicle and left up in the air the
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issue about other forms of tracking technology, this bill sets
forth warrant requirements so that law enforcement can use this
technology when a warrant is obtained. The bill applies to
any device that enables access to, or use of, an electronic
communication service, remote computing service or location
information service so applies to GPS that may be installed in a
car, phone or other device as well as one attached to a car.
Specifically, this bill provides that no government entity shall
obtain the location information of an electronic device without
a valid search warrant issued by a duly authorized magistrate.
The bill provides that a warrant shall not issue for a period
longer than necessary to achieve the objective but in any event
no longer than 30 days, commencing on the day of the initial
obtaining of the location information or 10 days after the
issuance of the warrant, whichever comes first. This time
limitation language is taken from the provisions allowing the
intercept of electronic communications with a court order
(wiretap laws). (Penal Code � 629.58) The limitation of time
discourages a law enforcement entity from going on a fishing
expedition. Requiring that the 30 day commence within 10 days
also makes sure that the probable cause does not get stale.
Similar to the wiretap laws, this bill allows for extensions of
the warrant. As proposed to be amended, this bill would allow
the extension granted only upon a finding of continuing probable
cause by the judge or magistrate, and a finding that the
extension is necessary to achieve the objective of the
authorization. Each extension shall also be no longer than
necessary and in no event longer than 30 days.
The bill explicitly provides that no warrant is needed to obtain
location information when there is a call for emergency
services, when the owner or user of the device consents or if
the government entity reasonably believes that an emergency
involving the immediate danger of death or serious injury to the
owner requires immediate access to the location information
without time to get a warrant. The government entity seeking
the information because of immediate danger shall file with the
appropriate court a written statement setting forth the facts
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giving rise to the emergency within 48 hours.
5. Reporting Requirement
This bill would require a provider of the services to prepare a
report of all the following to the extent it can be reasonably
determined and is not otherwise specifically prohibited by law:
The number of federal and state warrants for location
information and the number of requests for location
information made with the informed consent of the user from
January 1, to December 31 of the previous year.
The total number of disclosures the previous year.
For each category of demand or disclosure:
o The number of times location information has
been disclosed.
o The number of times no location information
has been disclosed.
o The number of times the provider contests the
demand.
o The number of users whose location information
was disclosed.
This bill provides that the reports shall be made publicly
available on line and if the provider does not have an Internet
Web site, shall be sent to the Office of Privacy Protection.
Commercial Web sites subject to specified privacy requirements
in the Government Code shall complete one of the following
actions:
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Create a prominent hyperlink to its latest report in the
disclosure section of its privacy policy.
Post the report in the section of its Internet Web site
explaining the way in which user information and privacy
issues related to its service are addressed.
CTIA-The Wireless Association believes these reporting
requirements in the bill would be onerous and costly.
Specifically they state:
These reporting mandates would unduly burden the
wireless providers and their employees- who are working
day and night to assist law enforcement to ensure the
public's safety and to save lives.
It is also unclear what useful purpose such reports
would serve. As wireless providers are constantly
working to respond to ever-changing consumer demands,
it is doubtful that diverting provider resources away
from meeting these demands to comply with these
reporting mandates would best serve wireless consumers.
What purpose will these reports serve? If the goal is to assure
consumer privacy and protection, is there a less onerous way to
accomplish this?
6. Related Legislation
AB 2055 (Fuentes) also establishes procedures for search
warrants for tracking devices. It passed Assembly Public Safety
on April 17, 2012.
7. Amendments to be Taken in Committee
The author will take the following amendments in Committee:
On Page 3, line 4, after device, insert the following:
including both the current location of the device, and any
prior location(s)
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On Page 3, line 11, strike the ultimate control over, or
having
On Page 3, line 22, after a, insert a valid search
warrant
On Page 3, lines 25-26, strike No warrant entered under
this section shall authorize obtaining location information
of an electronic device
On Page 3, line 25, after (b), insert No search warrant
shall issue for the location of an electronic device
pursuant to this section
On Page 3, line 26, after period, insert of time
On Page 3, line 30, after the period, insert Extensions
of a warrant may be granted, but only upon a finding of
continuing probable cause by the judge or magistrate, and
that the extension is necessary to achieve the objective of
the authorization. Each extension granted for a warrant
pursuant to this subdivision, shall be for no longer than
the authorizing judge or magistrate deems necessary to
achieve the purposes for which the warrant was originally
granted, but in any event, shall be for no longer 30 days.
On Page 3, line 32m after information, insert without a
search warrant, as provided in this section ,
On Page 3, line 35, strike concerned. and insert
concerned, provided however that the owner or user may not
consent to the disclosure of location information if the
device is known or believed to be in the possession of or
attached to a possession of a third party known to the
owner or user.
On Page 4, strike lines 28 through 30, inclusive.
On Page 4, line 28, after (b), insert Reports prepared
pursuant to subsection (a) shall be made publicly available
in an online, searchable format on or before March 1 of
each year. If the provider does not have an Internet Web
site, the provider shall send the reports to the Office of
Privacy Protection on or before March 1 of each year.
( c) On or before March 1 of each year, a provider subject
to Section 22575 of the Business and Professions Code shall
complete one of the following actions:
(1) Create a prominent hyperlink to its latest report
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prepared pursuant to subsection (a) in the disclosure
section of its privacy policy; or
(2) Post the report prepared pursuant to subsection
(a) in the section of its Internet Web site explaining
the way in which user information and privacy issues
related to its service are addressed.
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