BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 828 (Lieu)
As Amended April 21, 2014
Hearing date: April 29, 2014
Government Code
MK:mc
PRIVACY
HISTORY
Source: Author
Prior Legislation: None
Support: Restore the Fourth; Consumer Federation of California;
Media Alliance; Tenth Amendment Center; California
Attorneys for Criminal Justice; one private citizen
Opposition: California District Attorneys Association;
California Police Chiefs Association; IT Alliance for
Public Sector (concerns)
KEY ISSUE
SHOULD THE LAW PROHIBIT THE STATE OF CALIFORNIA 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?
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PURPOSE
The purpose of this bill is to prohibit the State of California
from helping the federal government collect metadata without
consent or a warrant.
The U.S. 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.)
This bill provides that the state shall not provide material
support, participation, or assistance to any federal agency
attempting the illegal and unconstitutional collection of
electronic data or metadata, without consent, of any person not
based on a warrant that particularly describes the person,
place, and thing to be searched or seized, or in accordance with
judicially recognized exceptions to warrant requirements.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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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
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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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
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to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
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The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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.
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COMMENTS
1. Need for This Bill
According to the authors:
Over the last seven years, the National Security Agency
(NSA) has collected phone record data on every
telephone call made or received by every American.
Media articles also state the NSA's surveillance
program on Americans extends to not just phone records,
but also all types of electronic data, including
emails, text messages and information stored on
Americans' smart phones.
To collect electronic and metadata information, the NSA
sometimes relies upon services provided by the state
and/or private entities that provide services on behalf
of the state. In order to prevent taxpayers' money
from going towards violating their own rights, this
bill would ban state agencies, officials, and
corporations providing services on behalf of the state
from giving any material support, participation or
assistance to any federal agency to collect electronic
or metadata of any person, unless there has been a
warrant issued that specifically describes the person,
place and thing to be searched or seized.
This bill is similar in concept to the Trust Act, which
the legislature passed last year. The Trust Act
prohibited local officials from cooperating with
federal immigration officials when it came to ICE
detention holds.
2. Prohibits Support Without a Warrant
This bill provides that the state shall not in any way assist a
federal agency with collecting electronic data or metadata
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without a warrant or the consent of the person.
As noted in the authors' statement, this bill is in response to
recent information about the NSA's surveillance program. The
intent of this bill is to make it clear that California shall
not help the NSA in any illegal or unconstitutional collection
of electronic data or meta data. The Tenth Amendment Center
supports this bill stating:
Recent revelations make it clear that the NSA
operations violate the Constitution on a daily basis.
The Fourth sets up clear parameters for searching and
seizing personal information. The founders chafed
under general warrants issued by the British government
that allowed random searches at the whim of the
authorities. The NSA operates in much the same manner,
thrusting a dagger into the heart of the Fourth
Amendment's intent.
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While California cannot bar the NSA from operating
within its borders, it does not have to cooperate with
or support the agency. The well-established
anti-commandeering doctrine, holding that the federal
government cannot coerce or compel states to implement
or enforce federal regulations or programs, puts SB 828
on firm legal footing.
3. Opposition
CDAA opposes this bill stating in part:
As written, SB 828 is overly broad and lacks
definitions of "electronic data" and "metadata", which
are two key terms in the bill. An internet search for
a definition of these terms returns a number of
examples that are inconsistent with each other. The
bill should define these terms to resolve any
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ambiguity.
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