Bill Text: CA SB178 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Privacy: electronic communications: search warrant.

Spectrum: Slight Partisan Bill (Democrat 12-5)

Status: (Passed) 2015-10-08 - Chaptered by Secretary of State. Chapter 651, Statutes of 2015. [SB178 Detail]

Download: California-2015-SB178-Amended.html

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BILL NUMBER: SB 178	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 22, 2015
	AMENDED IN SENATE  MARCH 16, 2015

INTRODUCED BY   Senators Leno and Anderson
   (Principal coauthor: Assembly Member Gatto)
   (Coauthors: Senators Cannella, Gaines, Hertzberg,  Hill, 
McGuire, Nielsen, and Roth)
   (Coauthors: Assembly Members Chiu, Dahle, Gordon, Maienschein,
Quirk,  Steinorth,  Ting, and Weber)

                        FEBRUARY 9, 2015

   An act to add Chapter 3.6 (commencing with Section 1546) to Title
12 of Part 2 of the Penal Code, relating to privacy.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 178, as amended, Leno. Privacy: electronic communications:
search warrant. 
   Existing 
    (1)     Existing  law provides that a
search warrant may only be issued 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. Existing law also states the grounds upon
which a search warrant may be issued, including, among other grounds,
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, or when there is a warrant to arrest a person.
   This bill would prohibit a government entity from compelling the
production of or access to electronic communication information or
electronic device information, as defined, without a search warrant
or wiretap order, except for emergency situations, as defined. The
bill would define a number of terms for those purposes, including,
among others, "electronic communication  information,"
"service provider,"   information"  and "electronic
device  information."   information," which the
bill defines collectively as   "electronic information."
 The bill would require a search warrant for electronic 
communication  information to encompass no more information
than is necessary to achieve the objective of the search and would
impose other conditions on the use of the search warrant or wiretap
order and the information obtained, including retention and
disclosure. The bill would, subject to exceptions, require a
government entity that executes a search warrant or wiretap order
pursuant to these provisions to contemporaneously provide notice, as
specified, to the identified target, that informs the recipient that
information about the recipient has been compelled or requested, and
that states the nature of the government investigation under which
the information is sought. The bill would authorize a delay of 90
days, subject to renewal, for providing the notice under specified
conditions that constitute an emergency. The bill would require the
notice to include a copy of the warrant or order or statement
describing the emergency under which the notice was delayed. The bill
would provide that electronic  communication 
information obtained in violation of these provisions would be
inadmissible in a criminal, civil, or administrative proceeding. The
bill would provide that a California or foreign corporation, and its
officers, employees, and agents, are not subject to any cause of
action for providing records, information, facilities, or assistance
in accordance with the terms of a  warrant or  
warrant,  wiretap order  , or other order  issued
pursuant to these provisions. The bill would also require a
government entity that obtains electronic  communication
 information pursuant to these provisions to make an annual
report to the Attorney General, and would require the Department of
Justice to annually publish a summary of the report on its Internet
Web site. By requiring local law enforcement entities to make those
annual reports, this bill would impose a state-mandated local
program. 
   (2) The California Constitution provides for the Right to Truth in
Evidence, which requires a 2/3 vote of the Legislature to exclude
any relevant evidence from any criminal proceeding, as specified.
 
   Because this bill would exclude evidence obtained or retained in
violation of its provisions in a criminal proceeding, it requires a
2/3 vote of the Legislature.  
   The 
    (3)     The  California Constitution
requires the state to reimburse local agencies and school districts
for certain costs mandated by the state. Statutory provisions
establish procedures for making that reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee: yes. State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 3.6 (commencing with Section 1546) is added to
Title 12 of Part 2 of the Penal Code, to read:
      CHAPTER 3.6.  ELECTRONIC COMMUNICATIONS PRIVACY ACT


   1546.  For purposes of this chapter, the following definitions
apply:
   (a) An "adverse result" means any of the following:
   (1) Danger to the life or physical safety of an individual.
   (2) Flight from prosecution.
   (3) Imminent destruction of or tampering with evidence.
   (4) Intimidation of potential witnesses.
   (5) Serious jeopardy to an investigation or undue delay of a
trial.
   (b) "Authorized possessor" means the possessor of an electronic
device when that person is the owner of the device or has been
authorized to possess the device by the owner of the device.
   (c) "Electronic communication" means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of any
nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system.
   (d) "Electronic communication information"  is 
 means  any information about an electronic communication or
the use of an electronic communication service, including, but not
limited to, the contents, sender, recipients, format, or location of
the sender or recipients at any point during the communication, the
time or date the communication was created, sent, or received, or any
information pertaining to any individual or device participating in
the communication, including, but not limited to, an IP address.
Electronic communication information does not include subscriber
information as defined in this chapter.
   (e) "Electronic communication service"  is  
means  a service that provides to its subscribers or users the
ability to send or receive electronic communications, including any
service that acts as an intermediary in the transmission of
electronic communications, or stores electronic communication
information.
   (f) "Electronic device" means a device that stores, generates, or
transmits information in electronic form.
   (g) "Electronic device information" means any information stored
on or generated through the operation of an electronic device,
including the current and prior locations of the device. 
   (h) "Electronic information" means electronic communication
information or electronic device information.  
   (h) 
    (i)  "Government entity" means a department or agency of
the state or a political subdivision thereof, or an individual
acting for or on behalf of the state or a political subdivision
thereof. 
   (i) 
    (j)  "Service provider" means a person or entity
offering an electronic communication service. 
   (j) 
    (k)  "Specific consent" is consent delivered directly to
the government entity seeking information. 
   (k) 
    (l)  "Subscriber information" means the name, street
address, telephone number, email address, or similar contact
information provided by the subscriber to the provider to establish
or maintain an account or communication channel, a subscriber or
account number or identifier, the length of service, and the types of
services used by a user of or subscriber to a service provider.
   1546.1.  (a) Except as provided in this section, a government
entity shall not do any of the following:
   (1) Compel the production of or access to electronic communication
information from a service provider.
   (2) Compel the production of or access to electronic device
information from any person or entity except the authorized possessor
of the device.
   (3) Access electronic device information by means of physical
interaction or electronic communication with the  device,
except with the specific consent of the authorized possessor of the
 device.
   (b) A government entity may compel the production of or access to
electronic  communication information or electronic device
information, or access electronic device information by means of
physical interaction or electronic communication with the device,
  information  subject to subdivision  (c)
  (d)  and only pursuant to a wiretap order
pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15
of Part 1, or pursuant to a search warrant pursuant to Chapter 3
(commencing with Section 1523), provided that the warrant shall not
compel the production of or authorize access to the contents of any
electronic communication initiated after the issuance of the warrant.

   (c) A government entity may access electronic device information
by means of physical interaction or electronic communication with the
device only as follows:
   (1) In accordance with a wiretap order issued pursuant to Chapter
1.4 (commencing with Section 629.50) of Title 15 of Part 1 or in
accordance with a search warrant issued pursuant to Chapter 3
(commencing with Section 1523), provided that a warrant shall not
authorize accessing the contents of any electronic communication
initiated after the issuance of the warrant.
   (2) With the specific consent of the  owner or 
authorized possessor of the device,  including  when a
government entity is the intended recipient of an electronic
communication initiated by the  owner or  authorized
possessor of the device.
   (3) With the specific consent of the owner of the device  ,
only  when the device has been reported as lost or stolen.
   (4) If the government entity, in good faith, believes that an
emergency involving  imminent  danger of death or
serious physical injury to any person requires access to the
electronic device information.
   (5) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the entity shall only
access electronic device information in order to attempt to
identify, verify, or contact the owner or authorized possessor of the
device.
   (d) Any warrant or wiretap order for electronic 
communication information or electronic device  information
shall comply with the following:
   (1) The warrant or order shall be limited to only that information
necessary to achieve the objective of the warrant or wiretap order,
including by specifying the target individuals or accounts, the
applications or services, the types of information, and the time
periods covered, as appropriate.
   (2) The warrant or order shall identify the effective date upon
which the warrant  or order  is to be executed, not to
exceed 10 days from the date the warrant is signed, or explicitly
state whether the warrant or wiretap order encompasses any
information created after its issuance.
   (3) The warrant or order shall comply with all other provisions of
California and federal law, including any provisions prohibiting,
limiting, or imposing additional requirements on the use of search
warrants or wiretap orders.
   (e) When issuing any warrant or wiretap order for electronic
 communication information or electronic device 
information,  or upon the petition from the target or recipient
of the warrant or wiretap order,  a court may, at its
discretion, do any or all of the following:
   (1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information necessary
to achieve the objective of the warrant or order is produced or
accessed.
   (2) Require that any information obtained through the execution of
the warrant or order that is unrelated to the objective of the
warrant be destroyed as soon as feasible after that determination is
made.
   (f) A service provider may disclose, but shall not be required to
disclose, electronic communication information or subscriber
information when that disclosure is not otherwise prohibited by 
state or federal  law.
   (g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (f), it
shall delete that information within 90 days unless the entity has or
obtains the specific consent of the sender or recipient of the
electronic communications about which information was disclosed or
obtains a court order authorizing the retention of the information. A
court shall issue a retention order upon a finding that the
conditions justifying the initial voluntary disclosure persist, in
which case the court shall authorize the retention of the information
only for so long as those conditions persist, or there is probable
cause to believe that the information constitutes evidence that a
crime has been committed.
   (h) If a government entity  requests that a service
provider disclose information, or if the government entity obtains
information,   obtains electronic information 
pursuant to an emergency involving danger of death or serious
physical injury to a person, that requires access to the electronic
information without delay, the entity shall, within three days after
 seeking disclosure,   obtaining the electronic
information,  file with the appropriate court a motion seeking
approval of the  requested  emergency disclosures
that shall set forth the facts giving rise to the emergency. The
court shall promptly rule on the motion and shall order the immediate
destruction of all information  received in response to the
request   obtained,  upon a finding that the facts
did not give rise to an emergency.
   (i) This section does not limit the authority of a 
governmental   government  entity to use an
administrative, grand jury, trial, or civil discovery subpoena to do
either of the following:
   (1) Require an originator, addressee, or intended recipient of an
electronic communication to disclose any electronic communication
information associated with that communication.
   (2) Require an entity that provides electronic communications
services to its officers, directors, employees, or agents  for
the purpose of carrying out their duties,  to disclose
electronic communication information associated with an electronic
communication to or from an officer, director, employee, or agent of
the entity.
   1546.2.  (a) Except as otherwise provided in this section, any
government entity that executes a warrant or wiretap order or
 issues   obtains electronic information in
 an emergency request  pursuant to Section
1546.1 shall contemporaneously serve upon, or deliver by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effective, the identified targets of the warrant,
order, or emergency request, a notice that informs the recipient that
information about the recipient has been compelled or requested, and
states with reasonable specificity the nature of the government
investigation under which the information is sought. The notice shall
include a copy of the warrant or order, or a written statement
setting forth facts giving rise to the emergency.
   (b) If there is no identified target of a warrant, wiretap order,
or emergency request  or access at the time of its issuance,
the government entity shall take reasonable steps to provide the
notice, within three days of the execution of the warrant, 
wiretap order, or emergency request or access,  to all
individuals about whom information was disclosed or obtained.
   (c) (1) When a wiretap order or search warrant is sought under
Section 1546.1, the government entity may submit a request supported
by a sworn affidavit for an order delaying notification and
prohibiting any party providing information from notifying any other
party that information has been sought. The court shall issue the
order if the court determines that there is reason to believe that
notification may have an adverse result, but only for the period of
time that the court finds there is reason to believe that the
notification may have that adverse result, and not to exceed 90 days.

   (2) The court may grant extensions of the delay of up to 90 days
each on the same grounds as provided in paragraph (1).
   (3) Upon expiration of the period of delay of the notification,
the government 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
order authorizing delayed notification, each individual whose
electronic  communication  information was acquired,
a document that includes the information described in subdivision
(a), a copy of all  electronic  information 
disclosed   obtained  or a summary of that
information, including, at a minimum, the number and types of records
disclosed, the date and time when the earliest and latest records
were created, and a statement of the grounds for the court's
determination to grant a delay in notifying the individual.
   (d) Except as otherwise provided in this section, nothing in this
chapter shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for
electronic  communication information or electronic device
 information.
   1546.4.  (a) Except as proof of a violation of this chapter, no
evidence obtained or retained in violation of this chapter shall be
admissible in a criminal, civil, or administrative proceeding, or
used in an affidavit in an effort to obtain a search warrant or court
order.
   (b) The Attorney General may commence a civil action to compel any
government entity to comply with the provisions of this chapter.
   (c)  If a warrant or wiretap order does not comply
  An individual whose information is targeted by a
warrant, wiretap order, or other legal process that is inconsistent
 with this chapter,  or the California or United States
Constitution, or  a service  provider,  
provider or  any other recipient of the  warrant or
wiretap order, or any individual whose information is targeted by the
warrant or wiretap order,   warrant, wiretap order, or
other legal process  may petition the issuing court to void or
modify the  warrant or wiretap order   warrant,
wiretap order, or process,  or to order the destruction of any
information obtained in violation of this chapter  , the
California Constitution, or the United States Constitution  .
   (d) A California or foreign corporation, and its officers,
employees, and agents, are not subject to any cause of action for
providing records, information, facilities, or assistance in
accordance with the terms of a  warrant  
warrant, court order, statutory authorization, emergency
certification,  or wiretap order issued pursuant to this
chapter.
   1546.6.  A government entity that obtains electronic 
communication  information pursuant to this chapter shall
make an annual report to the Attorney General. The report shall be
made on or before February 1, 2017, and each February 1 thereafter.
To the extent it can be reasonably determined, the report shall
include all of the following:
   (a) The number of requests or demands for electronic 
communication  information.
   (b) The number of requests or demands made, and the number of
records received for each of the following types of records:
   (1) Electronic communication content.
   (2) Location information. 
   (3) Electronic device information.  
   (4) 
    (3)  Other electronic  communication 
information.
   (c) For each of the types of records listed in subdivision (b),
all of the following:
   (1) The number of requests or demands that were each of the
following:
   (A) Wiretap orders obtained pursuant to this chapter.
   (B) Search warrants obtained pursuant to this chapter.
   (C) Emergency requests pursuant to subdivision (h) of Section
1546.1.
   (2) The total number of users whose information was requested or
demanded.
   (3) The total number of requests or demands that did not specify a
target individual.
   (4) The number of requests or demands complied with in full,
partially complied with, or refused.
   (5) The number of times the notice to the affected party was
delayed and the average length of the delay.
   (6) The number of times records were shared with other government
entities or any department or agency of the federal government, and
the agencies with which the records were shared.
   (7) For contents of electronic communications, the total number of
communications contents received.
   (8) For location information, the average period for which
location information was obtained or received and the total number of
location records received.
   (9) For other electronic communication information, the types of
records requested and the total number of records of each type
received.
   1546.8.  (a) On or before April 1, 2017, and each April 1
thereafter, the Department of Justice shall publish on its Internet
Web site both of the following:
   (1) The individual reports from each government entity that
requests or compels the production of contents or records pertaining
to an electronic communication or location information.
   (2) A summary aggregating each of the items in subdivisions (a) to
(c), inclusive of Section 1546.6.
   (b) Nothing in this chapter shall prohibit or restrict a service
provider from producing an annual report summarizing the demands or
requests it receives under this chapter.
  SEC. 2.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.