BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 467 (Leno)
As Amended April 1, 2013
Hearing date: April 30, 2013
Penal Code
MK:jr
PRIVACY:
ELECTRONIC COMMUNICATIONS; WARRANTS
HISTORY
Source: Electronic Frontier Foundation
Prior Legislation: SB 662 (Figueroa) Chapter 896, Stats. 1999
Support: American Civil Liberties Union; California Attorneys
for Criminal Justice;
California Public Defenders Association
Opposition:California State Sheriffs' Association; California
District Attorneys Association
KEY ISSUE
SHOULD THE LAW REQUIRE A SEARCH WARRANT WHEN A GOVERNMENTAL AGENCY
IS SEEKING THE CONTENTS OF A WIRE OR ELECTRONIC COMMUNICATION THAT
IS STORED, HELD OR MAINTAINED BY A PROVIDER?
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PURPOSE
The purpose of this bill is to require a search warrant when a
governmental agency is seeking the contents of a wire or
electronic communication that is stored, held or maintained by a
provider.
The US 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 and the persons or things to be seized." (4th Amendment
of the U.S. Constitution.)
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 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 � 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
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c) 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 or she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
d) 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.
e) 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.
f) When there is a warrant to arrest a person.
g) 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 or she may have delivered them for the
purpose of concealing them or preventing their discovery.
(Penal Code � 1524(a).)
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. (Penal Code � 1525.)
Existing federal law provides that a governmental entity may
require the disclosure by the provider of the contents of
electronic communications in electronic storage for one hundred
and eighty days or less only pursuant to a warrant under the
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Federal Rules or under an equivalent state warrant. (18 USCS
2701 et seq)
Existing law provides for a process for a search warrant for
records that are in the actual or constructive possession of a
foreign corporation that provides electronic communication
services or remote computing services to the general public,
where the records would reveal the identity of the customers
using those services, data stored by, or on behalf of, the
customer, the customer's usage of those services, the recipient
or destination of communications sent or from those customers,
or the content of those communications. (Penal Code � 1524.2)
This bill removes the requirement that to be subject to these
warrant procedures the corporation must provide services to the
general public.
This bill provides that a governmental entity shall not obtain
from a provider of electronic communication services or remote
computing services the contents of a wire or electronic
communication that is stored, held, or maintained by that
service provider without a valid search warrant issued by a duly
authorized magistrate, with jurisdiction of the offense under
investigation.
This bill provides that within three days after a governmental
entity receives those contents from a service provider, the
governmental entity shall serve upon, or deliver by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effective as specified by the court issuing the
warrant, to the subscriber, customer, or user a copy of the
warrant and a notice that includes specified information.
This bill defines "governmental entity" as a department or
agency of the state or any political subdivision thereof, or any
individual acting for or on behalf of the state or any political
subdivision thereof.
This bill provides that a governmental entity acting under Penal
Code Section 1524.5 may, when a search warrant is sought,
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include in the application a request, supported by a sworn
affidavit, for an order delaying the warrant notification
required under this bill. The court shall grant the request for
delayed notification if it determines there is reason to believe
that notification of existence of the warrant may have an
adverse result. The delay of the notification shall not be for
more than 90 days, with extensions granted in 90 day increments
upon a continuing finding of the same grounds.
This bill provides that upon expiration of the period of delay
of warrant notification, the governmental entity shall serve
upon, or deliver by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective as
specified but the court issuing the warrant, the customer, user
or subscriber a copy of the warrant together with a notice that
does both of the following:
States with reasonable specificity the nature of the
governmental inquiry.
Informs the customer, user, or subscriber all of the
following:
o That information maintained for the customer
or subscriber by the service provider named in the
process or request was supplied to, or requested by,
that governmental entity and the date on which the
supplying request took place.
o That warrant notification to the customer or
subscriber was delayed.
o The grounds for the court's determination to
grant the delay.
o Which provisions of the Penal Code authorized
the delay.
This bill provides that a service provider may divulge the
contents of a communication under any of the following
circumstances:
To an addressee or intended recipient of the
communication or an agent of the addressee or intended
recipient.
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As otherwise authorized by Penal Code Section 1524.2.
With the lawful consent of the originator, an addressee
or intended recipient of the communication, or the
subscriber in the case of remote computing service.
To a person employed or authorized or whose facilities
are used to forward the communication to its destination.
As may be necessary incident to the rendition of the
service or to the protection of the rights or property of
the provider of that service.
To law enforcement agency if the contents were
inadvertently obtained by the service provider and appear
to pertain to the commission of a crime.
To a governmental entity, if the provider, in good
faith, believes that an emergency involving the danger of
death or serious physical injury to any person requires
disclosure without delay of communications relating to the
emergency.
This bill provides that any provider of electronic communication
service or remote computing service, subscriber, or other person
aggrieved by any knowing or intentional violation of the warrant
and notice provisions may in a civil action, recover from the
person, entity, or governmental entity that committed the
violation, relief as may be appropriate including but not
limited to the following:
Preliminary and other equitable or declaratory relief.
Actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation but no
less than $1,000.
Reasonable attorney's fees and other litigation costs
reasonably incurred.
Punitive damages if the violation is willful and
intentional.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
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United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
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"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the bill
According to the author:
SB 467 updates California's electronic privacy law into
the modern age, ensuring emails and other electronic
communications content are protected from warrantless
government intrusion when stored online and in the
cloud.
Under SB 467, no government entity shall obtain the
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contents of an electronic communication without a
warrant issued by an officer of the court, regardless
of how long it has been in electronic storage or
whether it has been opened or unopened.
Law enforcement's ability to investigate and solve
crimes with the aid of electronic communications will
not be harmed by SB 467. First, the federal Department
of Justice recently announced for the first time that
it supports a requirement that law enforcement obtain a
search warrant before accessing the contents of
electronic communications from a service provider.<1>
Second, SB 467 codifies the practices of some of the
biggest technology companies in California, including
Google, Facebook, Microsoft and Yahoo!, all of whom
require a search warrant before disclosing the contents
of electronic communications.<2>
Third, SB 467 allows police to obtain the contents of
electronic communications without a warrant if they
have the consent of the user, or an emergency involving
the risk of death or serious injury requires immediate
disclosure of electronic communications without a
search warrant.
2. Existing Law for Obtaining Electronic Communications
Congress enacted the Electronic Communications Privacy Act in
---------------------------
<1>
See "Justice Dept. drops fight against tougher rules to access
e-mail," Washington Post, Mar. 19, 2013,
http://www.washingtonpost.com/world/national-security/justice-dep
t-drops-fight-against-tougher-rules-to-access-e-mail/2013/03/19/8
90edc5c-90c4-11e2-9abd-e4c5c9dc5e90_story.html
<2> See "Google, Microsoft, Yahoo, and Facebook say they require
warrants to give over private content," The Verge, Jan. 26,
2013,
http://www.theverge.com/2013/1/26/3917684/google-microsoft-yahoo-
facebook-require-warrants-private-content
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1986 to govern how law enforcement can access our personal
electronic communications which are stored by a service
provider. No warrant is needed if the information is more than
180 days old. In 1999, California enacted a provision to
provide a process for a California search warrant to be served
on an out of state corporation providing electronic
communications services or remote computing services to the
general public. The section explicitly states it should be
construed to be consistent with the federal act.
3. Warrant Requirement for Obtaining Electronic Communication or
Remote Computing Services
The author and sponsor note that the ability and use of
electronic communications has changed substantially since
Congress passed the Electronic Communications Privacy Act. On
his website Senator Leno summarizes the change:
In 1986, Congress enacted the Electronic Communications
Privacy Act (ECPA), which currently governs how law
enforcement can access our personal electronic
communications, which are stored online by service
providers such as Google, Microsoft, Facebook and
Twitter. As it stands today, law enforcement can obtain
the content of all opened email and unopened email 180
days or older without user notice or the oversight
protections afforded by a search warrant. When ECPA was
drafted, the internet was still in its
infancy--personal computers were not yet widely adopted
and we still predominately communicated by landline
telephones. At the time, ECPA may have made sense, but
our current technology has far outpaced the law. Just
as we have evolved to keep pace with advances in
technology, so too must our privacy laws adapt to
accurately reflect our modern electronic age.
This bill requires a government agency to obtain a search
warrant before accessing all personally identifiable
communications stored by online service providers. Specifically
this bill requires:
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That a warrant must be obtained for the contents of wire
or, electronic communications that is stored, held or
maintained by a service provider.
Within 3 days after a governmental entity shall serve to
the subscriber, customer or user a copy of the warrant that
includes information the nature of the inquiry and the
information that was supplied to the governmental entity.
The governmental entity can delay notification for up to
90 days if the court finds there is a reason to believe
that the warrant notification may have an adverse result.
Provides for extensions of the notification delays in 90
day increments with the same findings by the court.
When the delay expires the customer, user, or subscriber
shall be notified regarding the nature of the governmental
inquiry; what information was supplied to or requested by
the governmental entity and the date of the request; that
the notice was delayed and the reasons for that delay.
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This bill also provides that a person or entity providing
electronic communication service or remote computing devices
shall not knowingly divulge to any person or entity the contents
of a wire or electronic communication that is stored, held, or
maintained except under the following circumstances:
To an addressee or recipient of the communication.
As authorized by a warrant.
With the lawful consent of the originator, and addressee
or the intended recipient of the communication, or the
subscriber in the case of remote computing service.
To a person employed or authorized whose facilities are
used to forward the communication to its destination.
As may be necessary incident to the rendition of the
service or to the protection of the rights or property of
the provider of that services.
To a law enforcement agency if the contents were
inadvertently obtained by the service provider and appear
to pertain to the commission of a crime.
To a governmental entity, if the provider, in good
faith, believes that an emergency involving the danger of
death or serious physical injury to any person requires the
disclosure without delay.
A provider of electronic communication services or remote
computing service, subscriber or other person aggrieved by any
knowing or intentional release of information in violation of
the law shall in a civil action recover from the person, entity
or governmental action appropriate relief that may be, but is
not limited to the following:
Preliminary and other equitable or declaratory relief;
Damages including the sum of actual damages suffered by
the plaintiff and any profits made by the violator, but no
less than $1,000; and
Reasonable attorney's fees and other litigation costs.
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4. Potential Conflict with Wiretap Provisions
Existing law sets forth detailed requirements going beyond a
simple warrant for law enforcement to intercept communications.
Included in those provisions are electronic communications.
While this bill appears to be intended to address the search of
stored communications and thus should not overlap with the
provisions dealing with intercepting communications, it may be
appropriate to clarify that Penal Code Sections 629.50 et seq
still apply when an electronic communication is being
intercepted as it occurs.
5 . Support
The ACLU supports the requirement that government agencies
obtain a warrant prior to accessing electronic communications
held by third parties. Specifically:
The Founding Fathers recognized that citizens in a
democracy are entitled to privacy, writing in the
Fourth Amendment that "[t] 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." That remains as true as ever. But our
privacy laws have not kept up as technology has changed
the way we hold information.
The warrant and probable cause requirements are
especially important today given the extraordinary
intrusiveness of modern-day electronic surveillance. As
technology has changed the way we hold information.
The warrant and probable cause requirements are
especially important today given the extraordinary
intrusiveness of modern-day electronic surveillance. As
technology has advanced and we have entered the digital
age, more and more of our personal information has been
gathered, compiled, and stored in easily accessible
forms. Private correspondence once took the form only
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of letters sent through the postal service. They were
typically stored within the home, and were often
irretrievable discarded after a few days. By contrast
an individual's emails are typically sorted by a third
party on a centralized, remote, server, can be searched
easily for key terms and may never be deleted
permanently.
Current law arguably authorized government agencies to
access many of these private communications without
obtaining a probable cause warrant if they have been
opened and stored on a server for 180 days. SB 467
repairs and updates existing laws by ensuring the
electronic communications, including emails, can be
accessed only with a warrant regardless of how long it
is held by third parties.
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