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 ASSEMBLY  JULY 7, 2015
	AMENDED IN ASSEMBLY  JUNE 24, 2015
	AMENDED IN SENATE  JUNE 2, 2015
	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,
Obernolte, Quirk, 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.
   (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,   warrant, wiretap order, or
order for electronic reader records,  except for emergency
situations, as defined. The bill would define a number of terms for
those purposes, including, among others, "electronic communication
information" and "electronic device information," which the bill
defines collectively as "electronic information." The bill would
require a search warrant for electronic 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 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, wiretap order, or other order issued pursuant to these
provisions.
   (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.
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


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" 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" 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.
   (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.
   (j) "Service provider" means a person or entity offering an
electronic communication service.
   (k) "Specific consent" means consent provided directly to the
government entity seeking information, including, but not limited to,
when the government entity is the addressee or intended recipient of
an electronic communication.
   (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  
other than  the authorized possessor of the device.
   (3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
   (b) A government entity may compel the production of or access to
electronic  communication  information  subject to
subdivision (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. 
 from a service provider, or compel the production of or access
to electronic device information from any person or entity other than
the authorized possessor of the device only under the following
circumstances:  
   (1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).  
   (2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.  
   (3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code. 
   (c) A government entity may access electronic device information
by means of physical interaction or electronic communication with the
device only as follows: 
   (1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).  
   (1) In accordance with 
    (2)     Pursuant to  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.
  1.  
   (2) 
    (3)  With the specific consent of the authorized
possessor of the device. 
   (3) 
    (4)  With the specific consent of the owner of the
device, only when the device has been reported as lost or stolen.

   (4) 
    (5)  If the government entity, in good faith, believes
that an emergency involving danger of death or serious physical
injury to any person requires access to the electronic device
information. 
   (5) 
    (6)  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
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   warrant,
 by specifying the  time periods covered and, as appropriate
and reasonable, the  target individuals or accounts, the
applications or  services,   services covered,
and the types of  information, and the time periods
covered, as appropriate.   information sought. 

   (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) 
    (2)  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.   warrants. 
   (e) When issuing any warrant or  wiretap  order
for electronic 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   destroy  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 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 obtaining
the electronic information, file with the appropriate court a motion
seeking approval of the 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 obtained, upon a finding that the facts did not give rise
to an emergency.
   (i) This section does not limit the authority of a 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 obtains   warrant, or requests  electronic
information in an emergency pursuant to Section  1546.1
  1546.1,  shall contemporaneously serve upon, or
deliver  to  by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective, the
identified targets of the  warrant, order,  
warrant  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 submit to the Department of Justice within 72
hours a report that states with reasonable specificity the nature of
the government investigation under which the information was sought
and includes a copy of the warrant, or order, or a written statement
setting forth facts giving rise to the emergency. The Department of
Justice shall publish each report received pursuant to this
subdivision on its Internet Web site within 90 days of receiving the
report.  
   (c) (1) When a wiretap order or search 
    (b)     (1)     When a
 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  to  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 information was acquired,  
the identified targets of the warrant,  a document that includes
the information described in subdivision (a), a copy of all
electronic information 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. 
   (c) If there is no identified target of a warrant or emergency
request at the time of its issuance, the government entity shall
submit to the Department of Justice within three days of the
execution of the warrant or issuance of the request all of the
information required in subdivision (a). If an order delaying notice
is obtained pursuant to subdivision (b), the government entity shall
submit to the department upon the expiration of the period of delay
of the notification all of the information required in paragraph (3)
of subdivision (b). The department shall publish all those reports on
its Internet Web site within 90 days of receipt. 
   (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 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) An individual whose information is targeted by a warrant,
 wiretap  order, or other legal process that is
inconsistent with this chapter, or the California Constitution or the
United States Constitution, or a service provider or any other
recipient of the warrant,  wiretap  order, or other
legal process may petition the issuing court to void or modify the
warrant,  wiretap  order, or process, or to order
the destruction of any information obtained in violation of this
chapter,  or  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, court order, statutory
authorization, emergency certification, or wiretap order issued
pursuant to this chapter.