BILL ANALYSIS �
AB 2468
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2468 (Donnelly) - As Amended: April 8, 2014
SUBJECT : SEARCH WARRANTS: PRIVACY
KEY ISSUES :
1)SHOULD CALIFORNIA LAW PROHIBIT THE STATE AND CORPORATIONS FROM
PROVIDING ASSISTANCE TO ANY FEDERAL AGENCY ATTEMPTING THE
COLLECTION OF ELECTRONIC DATA OR META DATA, WITHOUT CONSENT OF
ANY PERSON NOT BASED ON A WARRANT?
2)WOULD THIS BILL POTENTIALLY REQUIRE THE STATE AND CORPORATIONS
TO VIOLATE A POTENTIALLY BROAD BUT UNCERTAIN ARRAY OF FEDERAL
LAWS, REGULATIONS AND ORDERS? ARE THE BILL'S TERMS AND
BREADTH SUFFICIENTLY CLEAR IN THEIR INTENT AND REACH?
3)WOULD THE BILL ALSO SPECIFICALLY CONFLICT WITH VARIOUS DUTIES
IMPOSED ON CORPORATIONS DOING BUSINESS IN CALIFONRIA, SUCH AS
STATUTORY AND REGULATORY DUTIES IMPOSED ON FINANCIAL
INSTITUTIONS TO PROVIDE MANDATED INFORMATION RELATING TO
LENDING AND ACCOUNT ORIGINATION ON A REGULAR BASIS? WOULD IT
INADVERTENTLY PENALIZE CORPORATIONS FOR SIMPLY COMPLYING WITH
FEDERAL LAWS AND REGULATIONS?
4)WOULD THE MEASURE THEREBY LIKELY BE FOUND TO BE PREEMPTED BY A
PLETHORA OF FEDERAL LAWS?
SYNOPSIS
This recent gut and amend seeks to address the recent
controversies surrounding the federal government's national
surveillance program overseen by the National Security Agency
(NSA). It appears to be a replica of the introductory version
of Senate Bill 828 (Lieu and Anderson), which was introduced
several months ago on January 6th. That measure, which has
since been substantially narrowed in scope, is scheduled to be
heard in the Senate Public Safety Committee the same day this
much broader measure is scheduled to be heard in this Committee.
An apparently identical measure to this one, H.B. 161, is being
pursued in at least one other state, Utah, by State
Representative Marc K. Roberts (R-Utah County).
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In addition to seeking to bar the state from providing
assistance to any federal agency attempting the collection of
electronic data or meta data, without the consent of any person
not based on a warrant, this bill seeks a host of other broad
statutory proscriptions whose terms are potentially vague and
whose scope is uncertain. For example, would the bill
potentially conflict with various financial institutions'
statutory and regulatory duties to provide mandated information
relating to lending and account origination on a regular basis?
Or would it prevent them from complying with federal law to
provide consumer electronic data to the federal government
without consumer consent or a search warrant, thereby penalizing
corporations for simply complying with federal laws and
regulations? Would the measure thereby be found to be preempted
by various federal laws?
In support, the author acknowledges that the bill seeks to
codify the principle that California may refuse to comply with
federal laws and potentially federal court orders, stating that
"Our state has a long history of noncompliance with Federal laws
that are unconstitutional, from medical marijuana to the passage
of AB 351 last year, and it can essentially enact the same
philosophy in regards to the NSA." There is no known
organizational support or opposition for this measure, but this
may partially be because the measure only came into being this
month.
SUMMARY : Prohibits, among other things, the state from helping
the federal government to collect electronic or so-called
metadata without consent or a bona fide search warrant.
Specifically, this bill :
1)Declares that it is the policy of the state to refuse to
provide material support, participation, or assistance to a
federal agency, or pursuant to a federal law, rule,
regulation, or order, that purports to authorize the
collection of electronic data or meta data of a person
pursuant to an action not based on a warrant that is issued
upon probable cause and that particularly describes the
persons, places, and things to be searched or seized.
2)Provides, notwithstanding any law, rule, regulation, or order,
a state agency, political subdivision of the state, or officer
or employee thereof acting in his or her official capacity, or
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corporation providing services on behalf of the state or a
political subdivision, that the state shall not do any of the
following:
a) Provide, in any form, material support, participation,
or assistance to a federal agency, or pursuant to a federal
law, rule, regulation, or order, that purports to authorize
the collection of electronic data or metadata of a person
pursuant to an action not based on a warrant that is issued
upon probable cause and that particularly describes the
persons, places, and things to be searched or seized.
b) Utilize any assets, state funds, or funds allocated by
the state to local entities on or after January 1, 2015, in
whole or in part, to engage in an activity that aids a
federal agency, federal agent, or corporation providing
services to the federal government in the collection of
electronic data or metadata of a person pursuant to an
action not based on a warrant that is issued upon probable
cause and that particularly describes the persons, places,
and things to be searched or seized.
c) Provide services, or participate or assist in any way in
providing services, to a federal agency, federal agent, or
corporation providing services to the federal government
that is involved in the collection of electronic data or
metadata of any person pursuant to an action not based on a
warrant that is issued upon probable cause and that
particularly describes the persons, places, and things to
be searched or seized.
d) Use in a criminal investigation or prosecution any
information provided by a federal agency, federal agent, or
corporation providing services to the federal government
that was obtained through the collection of electronic data
or metadata of any person pursuant to an action not based
on a warrant that is issued upon probable cause and that
particularly describes the persons, places, and things to
be searched or seized.
3)Provides that the Attorney General may bring an action in
court to enforce this bill.
4)Provides that state grant funds shall be withheld from a
political subdivision of the state that adopts an ordinance,
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resolution, or policy in violation of #2) above during the
first full fiscal year immediately following the year in which
a final judicial determination is made that the political
subdivision has violated #2) above in an action brought under
this bill.
a) For purposes of this bill, defines "state grant funds"
to mean funds that are awarded to a political subdivision
of the state pursuant to a state grant program.
b) Provides that an officer or employee of the state or a
political subdivision of the state who is found to have
violated #2) above in a final judicial determination shall
be deemed to have resigned from his or her office or
employment, and he or she shall thereafter be ineligible to
serve in any public office or public employment within this
state.
c) Provides that a corporation providing services on behalf
of the state or a political subdivision of the state that
is found to have violated #2) above in a final judicial
determination shall be ineligible to provide services on
behalf of, or provide services to, the state or a political
subdivision of the state.
5)Contains a severability clause.
EXISTING LAW :
1)Provides, under the U.S. Constitution, 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 and the persons or things
to be seized." (4th Amendment of the U.S. Constitution.)
2)Holds that the U.S. Constitution implies a right to privacy in
various aspects of one's personal life. (See, e.g., Griswold
v. Connecticut (1965) 381 U.S. 479; Roe v. Wade (1973) 410
U.S. 113).)
3)Provides, in the California Constitution, that "the right of
the people to be secure in their persons, houses, papers and
effects against unreasonable seizures and searches may not be
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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.)
4)Provides, in the California Constitution, that "All people . .
. have inalienable rights. Among these are . . . pursuing and
obtaining safety, happiness, and privacy." (Cal. Const. Art.
I, Section 1.)
5)Holds that the California constitutional right to privacy
defends against intrusions both by governmental and
nongovernmental actors. (Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal.4th 1, 16.)
6)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 Section 1523.)
7)Vests in Congress the power to "provide for the common defense
and general welfare of the United States" (U.S. Const. Art. I,
Section 8), and the President's Oath of Office includes a
pledge to "protect and defend the Constitution of the United
States" (U.S. Const. Art. II, Section 1).
8)Permits under federal law, except as specified, the Attorney
General of the United States and Director of National
Intelligence to authorize, for a period of up to one year, the
targeting of persons reasonably believed to be located outside
the United States to acquire foreign intelligence information.
(The Foreign Intelligence Surveillance Act of 1978 ("FISA"
Pub.L. 95-511, 92 Stat. 1783, 50 U.S.C. ch. 36.)
9)Authorizes the Director of the Federal Bureau of
Investigation, or his or her designee, to make an application
for an order requiring the production of any tangible things,
as specified, for an investigation to obtain foreign
intelligence information not concerning a United States person
or to protect against international terrorism or clandestine
intelligence activities. (Id.)
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FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This very recent gut and amend measure (created on
April 8th) appears to be a replica of the introductory version
of Senate Bill 828 (Lieu and Anderson) which was introduced
several months previously on January 6th. That measure, which
has since been substantially narrowed in scope, is scheduled to
be heard in the Senate Public Safety Committee the same day this
much broader measure is scheduled to be heard in this Committee.
An apparently identical measure to this one, H.B. 161, is being
pursued in at least one other state, Utah, by State
Representative Marc K. Roberts (R-Utah County). In addition to
seeking to bar the state from providing assistance to any
federal agency attempting the collection of electronic data or
meta data, pursuant to an action not based on a warrant, this
bill seeks a host of other broad statutory proscriptions whose
terms are potentially vague and whose scope is uncertain.
According to the author, the bill is in response to recent
information about the NSA's surveillance program. He states in
support of the measure that:
AB 2468 asserts California's right as a state to not
comply with the unconstitutional invasion of our privacy
by the NSA. Our state has a long history of
noncompliance with Federal laws that are
unconstitutional, from medical marijuana to the passage
of AB 351 last year, and it can essentially enact the
same philosophy in regards to the NSA. If passed, this
bill will reserve the people's right to protect all
Californians from this ongoing suspension of our civil
liberties and make sure that we are all secure from the
government reading our emails and listening to our phone
calls.
The Many Uncertain Implications of the Measure's Potential
Implementation : This bill is very broad in its scope and terms,
many of which are not easily discernible. For example, the bill
states that the state shall not "provide, in any form, material
support, participation, or assistance to a federal agency, or
pursuant to a federal law, rule, regulation, or order, that
purports to authorize the collection of electronic data or
metadata of a person pursuant to an action not based on a
warrant that is issued upon probable cause and that particularly
describes the persons, places, and things to be searched or
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seized." The Committee may wish to explore with the author the
uncertain contours of this provision.
For example, would the bill potentially conflict with various
financial institutions' statutory and regulatory duties to
provide mandated information relating to lending and account
origination on a regular basis? Or would it prevent them from
complying with federal law to provide consumer electronic data
to the federal government without consumer consent or a search
warrant, thereby penalizing corporations for simply complying
with federal laws and regulations? Would the measure thereby be
found to be preempted by various federal laws?
Although Not Expressing Any Position on This Measure,
TechAmerica Has Raised Similar Concerns With the Nearly
Identical Cousin of This Measure That Is Being Pursued in Utah :
TechAmerica, which is a major voice for the U.S. technology
industry, has raised many of these concerns regarding the
similar Utah legislation noted above. Amongst those concerns,
it states that this type of measure would "have the unintended
consequences of disrupting provision of services to the state of
Utah and its political subdivisions. For example, if the Utah
state government uses specific company email services, it would
not be able to continue doing so under HB 161 [the similar
measure to this bill] because the companies providing these
email services will presumably be required to provide
information to the federal government. Instead, Utah would have
to cease using these services and find new, potentially
less-experienced vendors." (Letter dated March 5, 2014, from
Kelly McKechnie Hitt, DirectorState Government Affairs - Western
Region, TechAmerica, on file in the Committee.)
Background -- The Federal Government And The State Of California
Already Are Required to Strike A Careful and Difficult Balance
Protecting Constitutional Rights And Promoting Public Safety :
As noted above, the California Constitution affirms the
importance of civil liberties, both with its protection against
unreasonable searches and seizures (Cal. Const. Art. I, Section
13) and its specific guarantee of the inalienable right to
privacy (Cal. Const. Art. I, Section 1). The federal government
recognizes the former right in the Fourth Amendment and the
latter right in a variety of Supreme Court decisions. (See,
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e.g., Griswold v. Connecticut (1965) 381 U.S. 479; Roe v. Wade
(1973) 410 U.S. 113; Lawrence v. Texas (2003) 539 U.S. 558.)
The United States has a long history of protecting civil
liberties, and California has of course been at the forefront of
this fight. Indeed, as the author notes, these constitutional
rights are the cornerstone of our democracy.
At the same time, however, it is important to reiterate that
Congress has the power to "provide for the common defense and
general welfare of the United States" (U.S. Const. Art. I,
Section 8), and the President's Oath of Office includes a pledge
to "protect and defend the Constitution of the United States"
(U.S. Const. Art. II, Section 1). Keeping the country safe and
secure is also an extremely important responsibility of both
Congress and the President. Both those institutions repeatedly
note that protecting the nation's security is among their top
priorities.
The Relationship Between Civil Liberties And National Security
Has Long Been The Subject Of Delicate Balancing, And That
Balancing Act Has Been Made Even More Complex With Newer
Electronic Means For Both Communication And Surveillance :
Surveillance by the National Security Agency (NSA) has been in
the public discourse since even before the September 11, 2001
terrorist attacks. In 1978, Congress enacted the Foreign
Intelligence Surveillance Act (FISA), which regulated the
surveillance of foreign targets and created the Foreign
Intelligence Surveillance Court (FISC). The FISC is a
specialized court designed to review, and when appropriate,
approve court orders for foreign surveillance. FISA has been
amended several times since September 11, 2001, including by the
Patriot Act of 2001, which was spearheaded by President Bush and
enacted just six weeks after the September 11th attacks. FISA
allows the surveillance of "agents of foreign powers," and,
among other things, the Patriot Act extended the definition to
include terrorists not working for any specific foreign
government.
A New York Times article in December, 2005, revealed that
President Bush had signed a presidential order in 2002
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permitting the NSA to monitor, without a warrant, international
phone calls and emails from the United States. This
surveillance led to many lawsuits, including Hepting v. AT&T
(N.D.Cal. 2006), which sought to prevent AT&T from cooperating
with domestic surveillance by the NSA. That case was dismissed
as a result of the FISA Amendments Act (FAA) of 2008, which
granted immunity to any person who provided assistance to the
intelligence community. (See In re National Sec. Agency
Telecommunications Records Litigation (9th Cir. 2011) 671 F.3d
881, 894 cert. denied (2012) 133 S.Ct. 421; other cases, such as
Jewel v. National Security Agency (N.D.Cal. 2008), are ongoing.)
Serious Questions About Federal Surveillance Programs Continue
to Be Raised About The Reach Of NSA Surveillance: Last year,
information about federal surveillance programs was leaked to
news organizations by Edward Snowden, a former CIA employee and
former NSA contractor, who has now been granted asylum in
Russia. First revealed was a court order requesting all
metadata from Verizon's phone records. Much about the context
of this order is not known, but varying news reports suggest
that such orders have been given regularly since about 2007.
Based on publicly available information, it appears - but we do
not yet know for sure since the reports about this issue are
changing daily -- that the federal government does not receive
recordings of phone calls or listen in on calls under this
program. As of now, reports continue to suggest that the NSA
currently receives information regarding phone numbers dialed,
call duration, and other such metadata.
Federal Assurances That The Nation's Surveillance Programs Are
In Fact Saving American Lives : In response to reports on the
surveillance programs, and massive media coverage raising
concerns about their scope, various government officials have
stated that these surveillance programs have helped to foil
numerous specific terror plots and catch dozens of terrorists.
In addition, they note that Congress has been briefed regularly,
and a federal court has approved the surveillance requests, as
required. Thus, they argue that all three branches of the
federal government have had some role in overseeing programs
critical to protect national security and have helped to ensure
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their constitutional legitimacy.
However, some reports have reportedly surfaced on a number of
errors made by the federal government when seeking information
through these programs. According to the Washington Post, an
NSA audit from May 2012 purportedly counted 2,776 incidents of
unauthorized collection in the preceding 12 months, most of
which were allegedly unintended, and one in ten of which were
due to typographical errors in analyst queries. Reportedly,
too, about two-thirds of these incidents occurred in relation to
foreign calls, not domestic calls. Only a few serious
violations have been publicly disclosed however.
President Obama's Announcement Last Year About Federal Reforms
in This Area : On August 9, 2013, in response to ongoing press
reports and controversies, President Obama announced that he
would pursue reforms of these programs. Conceding, "It's not
enough for me, as president, to have confidence in these
programs; the American people need to have confidence in them as
well," the President announced several steps that his
Administration would take to improve the programs, increase
their transparency, and ensure their constitutionality. These
steps include: working with Congress to pursue appropriate
reforms to the section of the Patriot Act that authorizes the
NSA program that collects telephone records; pursuing reforms
that improve the public's confidence in the oversight conducted
by the FISC; providing the public as much information about
surveillance programs as possible; and the formation of a high
level group of outside experts to review the entire intelligence
and communications technologies, which has since reported its
findings, some of which the President states he is implementing,
though the extent to which this is curtailing perceived
overreaches by the NSA remains unclear and evolving.
ARGUMENTS IN SUPPORT : Though not communicating support for the
similar measure in California, in Utah where a virtually
identical bill is being pursued by State Representative Marc K.
Roberts (R-Utah County) one website commentator insightfully
wrote in support of that measure that it would appear to allow
the State of Utah to legally "shut off the 1.7 million gallons
of water a day necessary to cool the U.S. National Security
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Agency Utah Data Center computers in Bluffdale, Utah."
( www.UtahConcealedCarry.com .)
ARGUMENTS IN OPPOSITION : IT Alliance for Public Sector writes
in opposition to the similar Senate version of the bill that:
[The bill] could be interpreted as barring any company
doing business with the state or a political subdivision
from contracting for any business with the identified
federal agency. Such a prohibition would seem to apply
broadly to any corporate offering, from janitorial
services to electronic data collection and anything in
between.
[The bill] could be interpreted to prohibit the
obligation of state or political subdivision funds in a
contract with a corporation that also contracts with any
federal agency to collect electronic data or metadata,
except as defined? Many California-based companies
provide technology goods and analytic services which are
important to the provision of national and homeland
security for U.S. citizens and this would seem to
unnecessarily jeopardize their ability to compete for
business with the state or political subdivisions.
[The bill] could be interpreted to prohibit assistance or
services from the affected entities should they wish to
promote economic development or offer incentives to
companies to locate in the state or a particular
political subdivision.
California District Attorneys Association argues that to the
extent that the bill "purports to prohibit the use of evidence
gathered by federal agencies legally under the United States
Constitution, it violates the California Constitution's
provisions concerning Truth-in-Evidence enacted by the voters
through Proposition 8 (1982)."
The California Police Chiefs Association notes that the bill, "a
law that appears to forbid local officials from cooperating with
federal agencies, would mean no local police in robbery and
kidnap cases being handled by the FBI, no participation of local
agencies if the FBI and Department of Homeland Security were
investigating Boston-marathon like terrorism in connection with
a Los Angeles based event, no joint task force or cooperation
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with federal agencies in connection with inter-state crimes such
as human trafficking, cargo theft, identity theft, narcotics
trafficking, as well as a whole host of other serious crimes."
Prior Related Legislation : AJR 26 (Allen) of 2013: Urged
Congress and the President of the United States to make the
protection of civil liberties and national security equal
priorities, to immediately discontinue any practices contrary to
the Fourth Amendment, and to instruct national security agencies
to ensure that national security is achieved without invasive
violations of civil liberties. Failed in this Committee by a
vote of 3-1.
AJR 27 (Donnelly) of 2013: Sought to have the Legislature
formally support the passage of the "LIBERT-E" Act in Congress,
which sought to restrict federal surveillance activities but was
defeated in Congress. Failed in this Committee by a vote of
1-1.
AB 351 (Donnelly) of 2013: Prohibits state agencies, political
subdivisions, employees, and members of the California National
Guard on official state duty from knowingly aiding an agency of
the Armed Forces of the United States in enforcing specified
federal laws if the agency, political subdivision, employee, or
National Guard member violates the United States or California
Constitutions, or any state law by providing that aid. Chapter
450, Stats. 2013.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334