BILL ANALYSIS �
SB 1434
Page 1
Date of Hearing: July 3, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1434 (Leno) - As Amended: June 28, 2012
As Proposed to be Amended in Committee
SUMMARY : Requires a government entity to get a search warrant
in order to obtain the location information of an electronic
device. Specifically, this bill :
1)Prohibits a government entity from obtaining the location
information of an electronic device without a valid search
warrant issued by a magistrate.
2)Restricts the issuance of a search warrant for the location of
an electronic device to a period of time no longer than
necessary to achieve the objective of the authorization, or
for a maximum of 30 days, starting either on the day of
location information is initially obtained, or 10 days after
the warrant is issued, whichever comes first.
3)Allows the court to grant one or more warrant extensions, but
only upon a finding of both continuing probable cause and
necessity.
4)Limits each extension granted to the time the authorizing
judge or magistrate deems necessary to achieve the purposes
for which the warrant was originally granted, but not to
exceed 30 days.
5)Allows a government entity to obtain location information
without a warrant in the following circumstances, but only if
disclosure is not prohibited under federal law:
a) In order to respond to the user's call for emergency
services;
b) With the informed, affirmative consent of the owner or
user of the device, provided that he or she may not consent
to the disclosure of location information if the device is
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known or believed to be in the possession of, or attached
to a possession of, a third party known to the owner or
user;
c) With the informed, affirmative consent of the legal
guardian or next of kin of the user of the electronic
device, if the user is deceased or reported missing and
unable to be contacted; and
d) If the government entity reasonably believes that an
emergency involving immediate danger of death or serious
physical injury to a specific person or persons requires
the disclosure of location information, and there is
insufficient time to obtain a warrant to prevent the
identified danger.
6)Requires the government entity seeking the location
information under the emergency exception to file a written
statement in court setting forth the facts giving rise to the
emergency, and the facts why the location information sought
was believed to be important in addressing the emergency. The
written statement shall be filed no later than 48 hours after
seeking disclosure.
7)Provides that, except as proof of a violation of this chapter,
no evidence obtained in violation of this chapter shall be
admissible in a civil or administrative proceeding.
8)Contains an immunity provision for providers of location
information.
9)Defines "electronic communication service" as a service that
provides to its users the ability to send or receive wire or
electronic communications.
10)Defines "electronic device" as a device that enables access
to, or use of, an electronic communication service, remote
computing service, or location information service.
11)Defines "government entity" as 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.
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12)Defines "location information" as information, concerning the
location of an electronic device, including both the current
location and any prior location of the device, that, in whole
or in part, is generated, derived from, or obtained by the
operation of an electronic device.
13)Defines "location information service" as the provision of a
global positioning service or other mapping, locational, or
directional information service.
14)Defines "owner" as the person or entity recognized by the law
as having the legal title, claim, or right to, an electronic
device.
15)Defines "remote computing service" as the provision of
computer storage or processing services by means of an
electronic communications system.
16)Defines "user" as a person or entity that uses an electronic
device.
EXISTING FEDERAL LAW :
1)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.)
2)Prohibits the interception and disclosure of wire, oral, or
electronic communications, as a general rule. (Electronic
Communication Privacy Act, 18 U.S.C. 2511.)
3)Allows a provider to divulge the contents of electronic
communication under specified circumstances, including with
the user's consent and if a government entity believes that an
emergency involving danger of death or serious physical injury
to any person requires disclosure without delay of
communications relating to the emergency. �18 U.S.C.
2702(b).]
EXISTING STATE LAW :
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1)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.)
2)Prohibits exclusion of relevant evidence in a criminal
proceeding on the ground that the evidence was obtained
unlawfully, unless the relevant evidence must be excluded
because it was obtained in violation of the federal
Constitution's Fourth Amendment. �Article I, Section 28(f)(2)
of the California Constitution (Right to Truth-in-Evidence
provision).]
3)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and directed to a peace
officer, commanding him or her to search for a person or
person, a thing or things, or personal property. (Penal Code
Section 1523.)
4)Provides the specific grounds upon which a search warrant may
be issued, including 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. (Penal Code Section
1524.)
5)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 Section 1525.)
6)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. �Penal Code Section 1528(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In January of
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this year, the United States Supreme Court unanimously ruled
in United States v. Jones that it was unconstitutional for the
police to install and use a GPS device to monitor a vehicle's
movements for 28 days without a warrant.
"In the decision, Justice Samuel Alito noted that advancements
in technology have now made it possible for law enforcement to
easily and surreptitiously access and aggregate massive
amounts of location information that may unjustifiably intrude
on an individual's private life.
"Justice Alito further noted that in circumstances involving
dramatic technological change that 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."
"SB 1434 simply responds to US Supreme Court ruling by
updating California privacy law to reflect the modern mobile
world 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 every day
in the form of 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 a person - where they go, what they
do, and even who they know. Many location-aware technologies
can track a person's location in real time, as well as record
this data to create a detailed log for months or even years.
"Without strong safeguards for location information,
Californians are left to wonder and worry that if they use
mobile technology, their personal information will be left
unprotected.
"SB 1434 makes the necessary updates to California law to
protect sensitive location information consistent with the
express right to privacy in the California Constitution. Under
SB 1434, no government entity shall obtain the location
information of an electronic device without a warrant issued
by an officer of the court.
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"SB 1434 also guards against abuses of long-term monitoring of
an electronic device by limiting search warrants for location
information to a timeframe no longer than is necessary, and
not to exceed 30 days."
2)U.S. v. Jones (2012) 132 S.Ct. 945 : In Jones, the United
States Supreme Court held that attaching a global positioning
system (GPS) device to a person's vehicle to track his or her
movements constitutes a search within the meaning of the
Fourth Amendment. 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 defendant 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
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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 judges concurred with the majority that
this would be the proper analysis.
This bill answers some of those open questions. This bill
establishes that a warrant is required to obtain location
information. This bill also sets forth procedures for law
enforcement to follow in order to obtain a warrant for
location information.
3)Exemptions to the Warrant Requirement : This bill exempts law
enforcement from obtaining a warrant to obtain the location
information of an electronic device in some limited
circumstances. Two of those exceptions involve emergency
situations and the other two involve the consent of the either
the user, or the user's legal guardian or family. Both of
these exceptions are based on firmly established exceptions to
the warrant requirement in Fourth Amendment case law. �See
e.g. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 ("one
of the specifically established exceptions to the requirements
of both a warrant and probable cause is a search that is
conducted pursuant to consent"); Mincey v. Arizona (1978) 437
U.S. 385, 392 �"the Fourth Amendment does not bar police
officers from making warrantless entries and searches when
they reasonably believe that a person within is in need of
immediate aid"].) These exceptions are also recognized in the
Electronic Communications Privacy Act. �18 U.S.C. 2702(b).]
4)Argument in Support : According to the American Civil
Liberties Union (a co-sponsor of this bill), "The danger posed
to an American's privacy by unregulated location tracking is
real, immediate, and universal. Because of the prevalence of
mobile phones in modern society, almost every American is
carrying a portable tracking device, which may be used to
reveal current and past locations. The ACLU recently filed
over 380 federal and state public records requests with law
enforcement asking for the production of written policies
pertaining to the warrantless tracking of individuals. Over
two hundred law enforcement agencies responded, and while all
admitted to using cell phone devices to track individuals,
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very few had a policy of obtaining a valid search warrant
before doing so. Because of the sensitivity and invasiveness
of these location records, law enforcement agents should
always be required to obtain a warrant and show probable cause
before reviewing or tracking any person's location.
"In January 2012, the United States Supreme Court ruled in
United States v. Jones (U.S. v. Jones (2012) 132 S. Ct. 945),
that the installation of a GPS device on a suspect's car
without a warrant constituted an unlawful search and seizure,
and as such, violated the Fourth Amendment. Justice Alito,
writing in concurrence of the majority in Jones, encouraged
state and federal legislators to provide clear guidelines as
to when and under what circumstances a warrant should be
required to track a person's location. He stated, "�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." (Jones, 132 S. Ct., at
964.) Regardless of whether the search occurs through use of
a cell phone or tracking device on a person's car, the
conclusion should be the same; in both cases, the government
should be required to obtain a warrant based on probable
cause.
"In light of the Supreme Court's ruling in Jones, and with a
close eye on the profound and deeply held American value of
protection against unnecessary government intrusion, SB 1434
provides a uniform and consistent framework to obtain a search
warrant for locational information."
5)Arguments in Opposition : According to the California District
Attorneys Association , "Notwithstanding language in the
concurring opinions of the United States Supreme Court ruling
in United States v. Jones (2012) 132 S.Ct. 945, this area of
law has arguably been preempted by federal law in the
Electronic Communications Privacy Act (ECPA) (18 USC 2701 et
seq.), which sets out in detail how state and federal
officials can obtain electronic communications data. However,
even without the preemption concerns, the federal law is much
clearer and less burdensome than this bill.
"Another difficulty raised by SB 1434 is that it requires a
search warrant to obtain location information and thereby
excludes use of a subpoena duces tecum (SDT). Often, when a
search warrant is served on a provider, the person who
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provides the copies of information to law enforcement on
behalf of the provider is not the same person who will be the
custodian of records who will testify to the records at trial.
A custodian will be extremely reluctant to testify that the
records another person in the company sent to law enforcement
are true copies of the records held by the company unless the
custodian has personally researched the records and brought
copies to court. Yet, this proposal does not allow us to
issue an SDT to accomplish this."
6)Related Legislation :
a) AB 2055 (Fuentes) establishes procedures for
tracking-devices search warrants. AB 2055 is pending
hearing by the Senate Committee on Public Safety.
b) SB 914 (Leno) 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 (Co-Sponsor)
Electronic Frontier Foundation (Co-Sponsor)
California Attorneys for Criminal Justice
California Public Defenders Association
City of Berkeley
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
California State Sheriffs' Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744