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  AUGUST 17, 2015
	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,
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.   any person in a
trial, hearing, or proceeding may move to suppress any electronic
information obtained or retained in violation of its provisions,
according to specified procedures.  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 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 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).
   (2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.
   (3) With the specific consent of the authorized possessor of the
device.
   (4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.
   (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.
   (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 for electronic information shall comply with the
following:
   (1) The warrant shall be limited to only that information
necessary to achieve the objective of the warrant, by specifying the
time periods covered and, as appropriate and reasonable, the target
individuals or accounts, the applications or services covered, and
the types of information sought.
   (2) The warrant 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.
   (e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
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 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  an
application for a warrant or order authorizing obtaining the
electronic information or  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  application
or  motion and shall order the immediate destruction of all
information obtained, upon a finding that the facts did not give rise
to an  emergency.   emergency or upon rejecting
the warrant or order application on any other ground. 
   (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 requests electronic
information in an emergency pursuant to Section 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 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 a written statement setting forth
facts giving rise to the emergency.
   (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, 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. 
    1546.4.    (a) Any person in a trial, hearing, or
proceeding may move to suppress any electronic information obtained
or retained in violation of the Fourth Amendment to the United States
Constitution or of this chapter. The motion shall be made,
determined, and be subject to review in accordance with the
procedures set forth in subdivisions (b) to (q), inclusive, of
Section 1538.5. 
   (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,
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, order, or
other legal process may petition the issuing court to void or modify
the warrant, 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.