BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1434|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
UNFINISHED BUSINESS
Bill No: SB 1434
Author: Leno (D)
Amended: 8/7/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/24/12
AYES: Hancock, Anderson, Liu, Price, Steinberg
NOES: Calderon, Harman
SENATE FLOOR : 30-6, 5/30/12
AYES: Alquist, Anderson, Berryhill, Cannella, Corbett,
Correa, De Le�n, DeSaulnier, Dutton, Evans, Gaines,
Hancock, Kehoe, La Malfa, Leno, Lieu, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Rubio, Simitian,
Steinberg, Vargas, Walters, Wolk, Wright, Yee
NOES: Blakeslee, Calderon, Fuller, Harman, Huff, Wyland
NO VOTE RECORDED: Emmerson, Hernandez, Runner, Strickland
ASSEMBLY FLOOR : 63-11, 8/22/12 - See last page for vote
SUBJECT : Location information: warrants
SOURCE : American Civil Liberties Union
Electronic Frontier Foundation
DIGEST : This bill requires a government entity to get a
search warrant in order to obtain the location information
of an electronic device.
Assembly Amendments (1) make clarifying changes relative to
CONTINUED
SB 1434
Page
2
guidelines for obtaining a search warrant, (2) prohibit
provisions of the bill from creating a cause of action
against any foreign or California corporations, and (3)
prohibit the use of information to be used in a civil
action.
ANALYSIS :
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.
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.
CONTINUED
SB 1434
Page
3
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.
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
CONTINUED
SB 1434
Page
4
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 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.
CONTINUED
SB 1434
Page
5
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.
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.
Background
CONTINUED
SB 1434
Page
6
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
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
CONTINUED
SB 1434
Page
7
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 8/22/12)
American Civil Liberties Union (co-source)
Electronic Frontier Foundation (co-source)
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
OPPOSITION : (Verified 8/22/12)
California District Attorneys Association
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : According to the author:
In January of this year, the United States Supreme Court
unanimously ruled in United States v. Jones that it was
CONTINUED
SB 1434
Page
8
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
CONTINUED
SB 1434
Page
9
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 an electronic device by limiting search
warrants for location information to a timeframe no
longer than is necessary, and not to exceed 30 days.
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 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.
ASSEMBLY FLOOR : 63-11, 8/22/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Block, Blumenfield, Bonilla, Bradford, Brownley,
Buchanan, Butler, Charles Calderon, Campos, Carter,
Cedillo, Chesbro, Davis, Dickinson, Donnelly, Eng, Feuer,
Fletcher, Fong, Fuentes, Furutani, Galgiani, Gatto,
Gordon, Grove, Hagman, Harkey, Hayashi, Hill, Huber,
CONTINUED
SB 1434
Page
10
Hueso, Huffman, Jeffries, Jones, Knight, Lara, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Mitchell, Monning,
Nielsen, Norby, Perea, V. Manuel P�rez, Skinner, Smyth,
Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski,
Williams, Yamada, John A. P�rez
NOES: Conway, Cook, Beth Gaines, Garrick, Gorell,
Halderman, Logue, Miller, Morrell, Olsen, Silva
NO VOTE RECORDED: Bill Berryhill, Hall, Roger Hern�ndez,
Nestande, Pan, Portantino
RJG:k 8/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED