BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 467|
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THIRD READING
Bill No: SB 467
Author: Leno (D)
Amended: 4/1/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-1, 4/30/13
AYES: Hancock, Block, De Le�n, Liu, Steinberg
NOES: Anderson
NO VOTE RECORDED: Knight
SUBJECT : Privacy: electronic communications: warrant
SOURCE : Electronic Frontier Foundation
DIGEST : This bill requires 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, as specified.
ANALYSIS :
Existing law:
1.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/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.
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2.Provides grounds in which a search warrant may be issued, as
specified.
3.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.
4.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 Federal Rules or under an
equivalent state warrant.
5.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.
This bill:
1.Removes the requirement that to be subject to warrant
procedures the corporation must provide services to the
general public.
2.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.
3.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
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court issuing the warrant, to the subscriber, customer, or
user a copy of the warrant and a notice that includes
specified information.
4.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.
5.Provides that a governmental entity acting under Penal Code
Section 1524.5 may, when a search warrant is sought, 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.
6.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:
A. States with reasonable specificity the nature of the
governmental inquiry.
B. Informs the customer, user, or subscriber all of the
following:
(1) 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.
(2) That warrant notification to the customer or
subscriber was delayed.
(3) The grounds for the court's determination to grant
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the delay.
(4) Which provisions of the Penal Code authorized the
delay.
1.Provides that a service provider may divulge the contents of a
communication under any of the following circumstances:
A. To an addressee or intended recipient of the
communication or an agent of the addressee or intended
recipient.
B. As otherwise authorized by Penal Code Section 1524.2.
C. 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.
D. To a person employed or authorized or whose facilities
are used to forward the communication to its destination.
E. 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.
F. To law enforcement agency if the contents were
inadvertently obtained by the service provider and appear
to pertain to the commission of a crime.
G. 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.
1.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:
A. Preliminary and other equitable or declaratory relief.
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B. 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.
C. Reasonable attorney's fees and other litigation costs
reasonably incurred.
D. Punitive damages if the violation is willful and
intentional.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/7/13)
Electronic Frontier Foundation (source)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Newspaper Publishers Association
California Public Defenders Association
The First Amendment Coalition
OPPOSITION : (Verified 5/7/13)
California District Attorneys Association
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : 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
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
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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.
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.
ARGUMENTS IN OPPOSITION : The California District Attorneys
Association (CDAA) states: This bill creates an unnecessary and
duplicative state requirement that a government entity obtain a
search warrant in order to access the contents of electronic
communications from service providers. This is already required
under federal law.
SB 467 attempts to graft onto California law more of the federal
statute without adopting the full federal legislation, which
would be unnecessary because it already applies to state and
local law enforcement. The piecemeal approach will simply cause
confusion about how to reconcile the two statutory schemes.
The federal statutes provide a number of exemptions to the
nondisclosure rule. The bill copies those verbatim (except that
it eliminates the federal exemption for reports to the National
Center for Missing and Exploited Children). Because the bill
would govern private systems, a problem arises because none of
those exemptions appear to allow IT in the private system to
disclose to management (corporate or governmental)
communications of an employee who is abusing the
e-mail system. Obviously, this could be disruptive of business
or government operations.
In short, this bill appears to be completely unnecessary in view
of the extensive federal statutes on this subject. It will
inject confusion into the matter by applying different rules to
private communications systems and, in fact, may be preempted by
federal law.
JG:ej 5/7/13 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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