BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 467|
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UNFINISHED BUSINESS
Bill No: SB 467
Author: Leno (D)
Amended: 9/4/13
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
SENATE FLOOR : 33-1, 5/13/13
AYES: Anderson, Beall, Berryhill, Block, Cannella, Corbett,
Correa, De Le�n, DeSaulnier, Emmerson, Evans, Fuller,
Galgiani, Hancock, Hernandez, Hill, Hueso, Jackson, Knight,
Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla, Pavley,
Roth, Steinberg, Wolk, Wright, Wyland, Yee
NOES: Huff
NO VOTE RECORDED: Calderon, Gaines, Price, Walters, Vacancy,
Vacancy
ASSEMBLY FLOOR : 73-3, 9/9/13 - See last page for vote
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.
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SB 467
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Assembly Amendments specify that the consent required in order
to divulge the contents of a communication includes any consent
obtained prior to January 1, 2014, if it is consistent in scope
with the requirements of this bill.
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.
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 180 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.
6.Prohibits a cause of action against a foreign or California
corporation or other entity, as specified, for providing
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records, information, facilities, or assistance in accordance
with the terms of a warrant.
This bill:
1.Deletes a provision of existing law that restricts the warrant
requirements for acquiring stored electronic information only
to those companies that provide electronic communication
services or remote computing services to the general public.
2.Prohibits a government entity from obtaining the contents of a
wire or electronic communication from a provider of electronic
communication service or remote computing service that is
stored, held, or maintained by that service provider without a
valid search warrant.
3.Requires a government entity that obtains the contents of an
electronic communication from a service provider pursuant to a
warrant to serve notice and a copy of the warrant upon the
customer, subscriber, or user within three days after
obtaining the communication. Requires that the notice contain
specified information, including reasonable specificity as to
the nature of the governmental inquiry and specifies
circumstances under which a governmental entity may delay
notice.
4.Prohibits a service provider from divulging the contents of an
electronic communication, subject to certain exceptions,
including where the service provider has the consent of the
sender or recipient of the communication, where it is
incidental to providing the service, or when it is disclosed
to a governmental entity to prevent death or serious injury,
as specified.
5.Permits the service provider, or the subscriber or any other
person aggrieved by a violation of the above provisions, to
recover specified relief and damages from any person or
governmental entity that committed the violation. Relief may
include, but is not limited to, equitable relief, damages,
including punitive damages, as specified, and attorney's fees
and litigation costs.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
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SUPPORT : (Verified 9/9/13)
Electronic Frontier Foundation (source)
American Civil Liberties Union
California Newspaper Publishers Association
California Public Defenders Association
City of Berkely
The First Amendment Coalition
OPPOSITION : (Verified 9/9/13)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chief Association
California State Sheriffs' Association
Los Angeles Police protective League
Riverside 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
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.
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ARGUMENTS IN OPPOSITION : The California District Attorneys
Association 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.
ASSEMBLY FLOOR : 73-3, 9/9/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Hagman,
Harkey, Roger Hern�ndez, Holden, Jones, Jones-Sawyer, Levine,
Linder, Logue, Lowenthal, Maienschein, Mansoor, Medina,
Mitchell, Morrell, Mullin, Muratsuchi, Nazarian, Nestande,
Olsen, Patterson, Perea, V. Manuel P�rez, Quirk, Quirk-Silva,
Rendon, Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber,
Wieckowski, Wilk, Williams, Yamada, John A. P�rez
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NOES: Beth Gaines, Grove, Melendez
NO VOTE RECORDED: Hall, Pan, Vacancy, Vacancy
JG:ej:d 9/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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