BILL ANALYSIS �
SB 467
Page 1
SENATE THIRD READING
SB 467 (Leno)
As Amended July 3, 2013
Majority vote
SENATE VOTE :33-1
PUBLIC SAFETY 6-1 JUDICIARY 9-0
-----------------------------------------------------------------
|Ayes:|Ammiano, Jones-Sawyer, |Ayes:|Wieckowski, Wagner, |
| |Mitchell, Quirk, Skinner, | |Alejo, Chau, Dickinson, |
| |Waldron | |Garcia, Gorell, |
| | | |Maienschein, Stone |
|-----+--------------------------+-----+--------------------------|
|Nays:|Melendez | | |
| | | | |
-----------------------------------------------------------------
SUMMARY : Requires a search warrant when a governmental agency is
seeking to obtain the contents of a wire or electronic communication
that is stored, held or maintained by a provider of electronic
communication services or remote computing services. Specifically,
this bill :
1)Defines a "governmental entity" as a department or agency of
California or any political subdivision thereof, or an individual
acting for or on behalf of California or any political subdivision
thereof.
2)States, 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 the required information, except that delayed notice
may be given as specified.
3)Allows a governmental entity, when a search warrant is sought, to
include in the application a request, supported by sworn
affidavit, for an order delaying the warrant notification required
under existing provisions of law.
SB 467
Page 2
4)Requires the court to grant the request if the court determines
that there is reason to believe that notification of the existence
of the warrant may have an adverse result as defined, but only for
the period of time that the court finds there is reason to believe
that the warrant notification may have that adverse result, and in
no event shall the period of time for the delay exceed 90 days.
5)Authorizes the court to grant extensions of the delay of the
warrant notification of up to 90 days each on the same grounds.
6)Requires the governmental entity, upon expiration of the period of
delay of the warrant notification, to 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, 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; and,
b) Informs the customer, user, or subscriber all of the
following:
i) 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 or request took
place;
ii) That warrant notification to the customer or subscriber
was delayed;
iii) The grounds for the court's determination to grant the
delay; and,
iv) Which provisions of this bill authorized the delay.
7)Removes the requirement that to be subject to these warrant
procedures the corporation must provide services to the general
public.
8)States, except as provided, a person or entity providing an
electronic communication service or remote computing service shall
SB 467
Page 3
not knowingly divulge to any person or entity the contents of a
wire or electronic communication that is stored, held, or
maintained by that service.
9)Provides that the terms "electronic communication services" and
"remote computing services" shall have the same meanings as they
have in the federal Electronic Communications Privacy Act.
10)Specifies 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 in existing provisions of law
relating to search warrants and foreign corporations that
provide specified services.
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 a law enforcement agency if the contents were
inadvertently obtained by the service provider and appear to
pertain to the commission of a crime; or,
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.
11)States, except as provided, any provider of electronic
communication service or remote computing service, subscriber, or
other person aggrieved by any knowing or intentional violation of
this chapter may, in a civil action, recover from the person,
entity, or governmental entity that committed the violation,
relief as may be appropriate.
SB 467
Page 4
12)Provides in a civil action under this section, appropriate relief
includes, but is not limited to, all of the following:
a) Preliminary and other equitable or declaratory relief;
b) Damages as specified; and,
c) Reasonable attorney's fees and other litigation costs
reasonably incurred.
13)Specifies that the court may assess as damages, in a civil
action, the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the violation,
but in no case shall a person be entitled to recover less than the
sum of $1,000.
14)Authorizes the court to assess punitive damages if the violation
is willful or intentional.
FISCAL EFFECT : None. This bill has been keyed nonfiscal by the
Legislative Counsel.
COMMENTS : 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 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
SB 467
Page 5
disclosing the contents of electronic communications.
"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."
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0001440