Bill Text: CA SB467 | 2013-2014 | Regular Session | Amended

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

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Bill Title: Privacy: electronic communications: warrant.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2014-02-27 - Consideration of Governor's veto stricken from file. [SB467 Detail]

Download: California-2013-SB467-Amended.html

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BILL NUMBER: SB 467	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 3, 2013
	AMENDED IN ASSEMBLY  JUNE 20, 2013
	AMENDED IN SENATE  APRIL 1, 2013

INTRODUCED BY   Senator Leno

                        FEBRUARY 21, 2013

   An act to amend Section 1524.2 of, and to add Sections 1524.4,
1524.5, 1524.6, and 1524.7 to, the Penal Code, relating to privacy.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 467, as amended, Leno. Privacy: electronic communications:
warrant.
   Existing law authorizes a court or magistrate to issue a warrant
for the search of a place and the seizure of property or things
identified in the warrant where there is probable cause to believe
that specified grounds exist. Existing law also provides for a
warrant procedure for the acquisition of stored communications and
other identifying information in the possession of a foreign
corporation that is a provider of electronic communication services
or remote computing services to the general public, and procedures
for a California corporation that provides electronic communication
services or remote computing services to the general public when
served with a warrant issued by a court in another state.
   This bill would delete the warrant requirement that the providers
of electronic communication services or remote computing services be
providing those services to the general public.
   This bill would prohibit a governmental entity, as defined, from
obtaining the contents of a wire or electronic communication from a
provider of electronic communication services or remote computing
services that is stored, held, or maintained by that service provider
without a valid search warrant issued by a duly authorized
magistrate, with jurisdiction over the offense under investigation,
using established warrant procedures. The bill would require, within
3 days after a governmental entity receives those contents from a
service provider pursuant to the warrant, the governmental entity to
serve upon or deliver to the subscriber, customer, or user a copy of
the warrant and a notice, as specified, including certain
information. The bill would authorize a delay in serving the warrant
notice, as provided.
   This bill would prohibit, except as provided, a person or entity
providing electronic communication services or remote computing
services from knowingly divulging to any person or entity the
contents of a wire or electronic communication that is stored, held,
or maintained by that service provider.
   Any knowing or intentional violation of these provisions, except
as provided, would be subject to a civil action with appropriate
relief, including, but not limited to, actual damages of not less
than $1,000, possible punitive damages, attorney's fees, and court
costs.
   Existing law prohibits a cause of action against a foreign or
California corporation or other entity, as specified, for providing
records, information, facilities, or assistance in accordance with
the terms of a warrant.
   This bill would also prohibit a cause of action against a foreign
or California corporation or other entity, as specified, that
provides records, information, facilities, or assistance pursuant to
statutory authorization, as specified.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

  SECTION 1.  Section 1524.2 of the Penal Code is amended to read:
   1524.2.  (a) As used in this section, the following terms have the
following meanings:
   (1) The terms "electronic communication services" and "remote
computing services" shall  be construed in accordance with
  have the same meaning as they have in  the
Electronic Communications Privacy Act in Chapter 121 (commencing with
Section 2701) of Part I of Title 18 of the United State Code
Annotated.
   (2) An "adverse result" occurs when notification of the existence
of a search warrant results in:
   (A) Danger to the life or physical safety of an individual.
   (B) A flight from prosecution.
   (C) The destruction of or tampering with evidence.
   (D) The intimidation of potential witnesses.
   (E) Serious jeopardy to an investigation or undue delay of a
trial.
   (3) "Applicant" refers to the peace officer to whom a search
warrant is issued pursuant to subdivision (a) of Section 1528.
   (4) "California corporation" refers to any corporation or other
entity that is subject to Section 102 of the Corporations Code,
excluding foreign corporations.
   (5) "Foreign corporation" refers to any corporation that is
qualified to do business in this state pursuant to Section 2105 of
the Corporations Code.
   (6) "Properly served" means that a search warrant has been
delivered by hand, or in a manner reasonably allowing for proof of
delivery if delivered by United States mail, overnight delivery
service, or facsimile to a person or entity listed in Section 2110 of
the Corporations Code.
   (b) The following provisions shall apply to any search warrant
issued pursuant to this chapter allowing a search for records that
are in the actual or constructive possession of a foreign corporation
that provides electronic communication services or remote computing
services, where those 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 to or from those customers, or the
content of those communications.
   (1) When properly served with a search warrant issued by the
California court, a foreign corporation subject to this section shall
provide to the applicant, all records sought pursuant to that
warrant within five business days of receipt, including those records
maintained or located outside this state.
   (2) Where the applicant makes a showing and the magistrate finds
that failure to produce records within less than five business days
would cause an adverse result, the warrant may require production of
records within less than five business days. A court may reasonably
extend the time required for production of the records upon finding
that the foreign corporation has shown good cause for that extension
and that an extension of time would not cause an adverse result.
   (3) A foreign corporation seeking to quash the warrant must seek
relief from the court that issued the warrant within the time
required for production of records pursuant to this section. The
issuing court shall hear and decide that motion no later than five
court days after the motion is filed.
   (4) The foreign corporation shall verify the authenticity of
records that it produces by providing an affidavit that complies with
the requirements set forth in Section 1561 of the Evidence Code.
Those records shall be admissible in evidence as set forth in Section
1562 of the Evidence Code.
   (c) A California corporation that provides electronic
communication services or remote computing services, when served with
a warrant issued by another state to produce records that 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
to or from those customers, or the content of those communications,
shall produce those records as if that warrant had been issued by a
California court.
   (d) No cause of action shall lie against any foreign or California
corporation subject to this section, its officers, employees,
agents, or other specified persons for providing records,
information, facilities, or assistance in accordance with the terms
of a warrant issued pursuant to this chapter or statutory
authorization pursuant to this chapter.
  SEC. 2.  Section 1524.4 is added to the Penal Code, to read:
   1524.4.  (a) A governmental entity shall not obtain from a
provider of electronic communication services or remote computing
services the contents of a wire or electronic communication that is
stored, held, or maintained by that service provider without a valid
search warrant issued by a duly authorized magistrate, with
jurisdiction over the offense under investigation, using procedures
established pursuant to this chapter.
   (b) Within three days after a governmental entity receives those
contents from a service provider, the governmental 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 warrant, to the subscriber, customer, or user
a copy of the warrant and a notice that includes the information
specified in paragraph (1) of  ,  and subparagraph (A) of
paragraph (2) of  ,  subdivision (c) of Section 1524.5,
except that delayed notice may be given pursuant to Section 1524.5.
   (c) For purposes of this chapter, "governmental entity" means a
department or agency of the state or any political subdivision
thereof, or an individual acting for or on behalf of the state or any
political subdivision thereof. 
   (d) For the purposes of this section, the terms "electronic
communication services" and "remote computing services" shall have
the same meanings as they have in the Electronic Communications
Privacy Act in Chapter 121 (commencing with Section 2701) of Part I
of Title 18 of the United State Code. 
  SEC. 3.  Section 1524.5 is added to the Penal Code, to read:
   1524.5.  (a) (1) A governmental entity acting under Section 1524.2
may, when a search warrant is sought, include in the application a
request, supported by sworn affidavit, for an order delaying the
warrant notification required under subdivision (b) of Section
1524.4.
   (2) The court shall grant the request if the court determines that
there is reason to believe that notification of the existence of the
warrant may have an adverse result as defined in paragraph (2) of
subdivision (a) of Section 1524.2, but only for the period of time
that the court finds there is reason to believe that the warrant
notification may have that adverse result, and in no event shall the
period of time for the delay exceed 90 days.
   (b) The court may grant extensions of the delay of the warrant
notification, provided for in subdivision (b) of Section 1524.4, of
up to 90 days each on the same grounds as provided in subdivision
(a).
   (c) Upon expiration of the period of delay of the warrant
notification under subdivision (a) or (b), the governmental 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 warrant, the customer, user,
or subscriber a copy of the warrant together with a notice that does
both of the following:
   (1) States with reasonable specificity the nature of the
governmental inquiry.
   (2) Informs the customer, user, or subscriber all of the
following:
   (A) That information maintained for the customer or subscriber by
the service provider named in the process or request was supplied to,
or requested by, that governmental entity and the date on which the
supplying or request took place.
   (B) That warrant notification to the customer or subscriber was
delayed.
   (C) The grounds for the court's determination to grant the delay.
   (D) Which provisions of this chapter authorized the delay.
  SEC. 4.  Section 1524.6 is added to the Penal Code, to read:
   1524.6.  (a) Except as provided in subdivision (b), a person or
entity providing an electronic communication service or remote
computing service shall not knowingly divulge to any person or entity
the contents of a wire or electronic communication that is stored,
held, or maintained by that service.
   (b) A service provider described in subdivision (a) may divulge
the contents of a communication under any of the following
circumstances:
   (1) To an addressee or intended recipient of the communication or
an agent of the addressee or intended recipient.
   (2) As otherwise authorized in Section 1524.2.
   (3) With the lawful consent of the originator, an addressee, or
intended recipient of the communication, or the subscriber in the
case of remote computing service.
   (4) To a person employed or authorized or whose facilities are
used to forward the communication to its destination.
   (5) As may be necessary incident to the rendition of the service
or to the protection of the rights or property of the provider of
that service.
   (6) To a law enforcement agency if the contents were inadvertently
obtained by the service provider and appear to pertain to the
commission of a crime.
   (7) To a governmental entity, if the provider, in good faith,
believes that an emergency involving the danger of death or serious
physical injury to any person requires disclosure without delay of
communications relating to the emergency. 
   (c) For the purposes of this section, the terms "electronic
communication service" and "remote computing service" shall have the
same meanings as they have in the Electronic Communications Privacy
Act in Chapter 121 (commencing with Section 2701) of Part I of Title
18 of the United State Code. 
  SEC. 5.  Section 1524.7 is added to the Penal Code, to read:
   1524.7.  (a) Except as provided in subdivision (d) of Section
1524.2, any provider of electronic communication service or remote
computing service, subscriber, or other person aggrieved by any
knowing or intentional violation of this chapter may, in a civil
action, recover from the person, entity, or governmental entity that
committed the violation, relief as may be appropriate.
   (b) In a civil action under this section, appropriate relief
includes, but is not limited to, all of the following:
   (1) Preliminary and other equitable or declaratory relief.
   (2) Damages under subdivision (c).
   (3) Reasonable attorney's fees and other litigation costs
reasonably incurred.
   (c) (1) The court may assess as damages, in a civil action, the
sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation, but in no case
shall a person be entitled to recover less than the sum of one
thousand dollars ($1,000).
   (2)  If the violation is willful or intentional, the court may
assess punitive damages. 
   (d) For the purposes of this section, the terms "electronic
communication service" and "remote computing service" shall have the
same meanings as they have in the Electronic Communications Privacy
Act in Chapter 121 (commencing with Section 2701) of Part I of Title
18 of the United State Code.