BILL ANALYSIS �
SB 1434
Page 1
SENATE THIRD READING
SB 1434 (Leno)
As Amended August 7, 2012
Majority vote
SENATE VOTE :30-6
PUBLIC SAFETY 6-0
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|Ayes:|Ammiano, Knight, Cedillo, | | |
| |Hagman, Mitchell, Skinner | | |
| | | | |
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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;
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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
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,
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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.
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."
2)Prohibits the interception and disclosure of wire, oral, or
electronic communications, as a general rule.
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.
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EXISTING STATE LAW :
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."
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.
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
persons, a thing or things, or personal property.
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.
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.
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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, "In January of this year,
the United States Supreme Court unanimously ruled in United
States v. Jones that it was unconstitutional for the police to
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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.
"SB 1434 also guards against abuses of long-term monitoring of
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an electronic device by limiting search warrants for location
information to a timeframe no longer than is necessary, and not
to exceed 30 days."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
FN: 0004442