BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1434|
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THIRD READING
Bill No: SB 1434
Author: Leno (D)
Amended: 5/24/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/24/12
AYES: Hancock, Anderson, Liu, Price, Steinberg
NOES: Calderon, Harman
SUBJECT : Location information: warrants
SOURCE : American Civil Liberties Union
Electronic Frontier Foundation
DIGEST : 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 judge or magistrate.
Senate Floor Amendments of 5/24/12 remove the reporting
requirement and make other related changes.
ANALYSIS : The United States 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. (Fourth
Amendment of the U.S. Constitution)
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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/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 (PEN) Section 1523)
Existing law provides that a search warrant may be issued
upon any of the following grounds:
1. When the property was stolen or embezzled.
2. When the property or things were used as the means of
committing a felony.
3. When the property or things are in the possession of
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/she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
4. 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.
5. 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.
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6. When there is a warrant to arrest a person.
7. 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/she
may have delivered them for the purpose of concealing
them or preventing their discovery. (PEN Section
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. (PEN Section 154.2)
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. (PEN Section
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. (PEN Section 1524.3(d))
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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. (PEN Section 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 provides that no search warrant shall be issued
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.
This bill provides that extensions of a warrant may be
granted, but only upon a judge or magistrate finding
continuing probable cause, 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:
1. In order to respond to the user's call for emergency
services.
2. 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.
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3. 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 any person to require the
disclosure without delay of location information
relating to the emergency 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 and
the facts as to why the person whose location
information was sought was believed to be important in
addressing the emergency no later than 48 hours after
seeking disclosure.
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, 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 (GPS) 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
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electronic device.
This bill defines remote computing service as the provision
of computer storage or processing service by means of an
electronic communications system.
Background
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 Fourth 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 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
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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.
Prior legislation . SB 914 (Leno, 2011) passed the Senate
(32-4) on September 1, 2011, but was vetoed. In his veto
message Governor Brown stated that "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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/24/12)
American Civil Liberties Union (co-source)
Electronic Frontier Foundation (co-source)
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the author:
SB 1434 updates California privacy law to reflect the
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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 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.
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RJG:kc 5/25/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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