Today's Law As Amended

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AB-1681 Smartphones.(2015-2016)



SECTION 1.
 The Legislature finds and declares all of the following:
(a) Worldwide, human trafficking is a $32 billion per year industry.
(b) After drug trafficking and counterfeiting, human trafficking is the world’s most profitable criminal activity.
(c) Although previously believed to be an international problem, current statistics show that human trafficking is increasingly a domestic issue.
(d) According to estimates by the Federal Bureau of Investigation (FBI), human trafficking or the commercial sexual exploitation of children in the United States currently involves over 100,000 children. The San Francisco Bay area, Los Angeles, and San Diego metropolitan areas comprise three of the nation’s 13 areas of “high intensity” child exploitation in this country, as described by the FBI.
(e) Studies have estimated that anywhere from 50 to 80 percent of victims of commercial sexual exploitation are, or were formerly, involved with the child welfare system.
(f) Smartphones are increasingly becoming a weapon of choice for criminals and criminal organizations involved in human trafficking and sexual exploitation of children.
(g) In 2014, smartphones with full-disk encryption (FDE) became available on the market.
(h) On smartphones with FDE, when a user creates a password, that phrase generates a key that is used in combination with a hardware key on a chip inside the phone, which blocks access to all “data at rest” stored in the device.
(i) “Data at rest” on a smartphone is data that is parked, stored, and no longer in motion, such as pictures and text messages.
(j) Only the password holder can unlock the FDE-equipped smartphone and provide access to all “data at rest.”
(k) Before 2014, when smartphones without FDE were used in crimes, law enforcement obtained and served a court order on the phone manufacturer and was able to have access to “data at rest” on the device, to aid in an investigation.
(l) In order to successfully access “data at rest” on smartphones in a criminal investigation, law enforcement must have physical possession of the phone.
(m) Since the introduction of FDE on smartphones in 2014, “data at rest” on FDE-equipped smartphones has become virtually impossible to access.
(n) A smartphone belonging to one of the shooters in the County of San Bernardino mass shooting, which left 14 people dead and many more injured, is equipped with FDE and has prevented law enforcement from accessing the phone’s content for evidence.
(o) Since 2014, FDE in smartphones has created a public safety crisis that has armed criminals and criminal organizations with a powerful weapon to conduct illicit activities while simultaneously providing a shield to conceal crimes and remain out of reach of law enforcement.
(p) Since 2014, FDE in smartphones has rendered court orders to access critical evidence on smartphones useless.
(q) Since 2014, FDE in smartphones has interfered with law enforcement human trafficking investigations and prosecutions.
(r) Smartphones play an essential role in facilitating cases of domestic minor sex trafficking. Human traffickers text logistical information, such as time, place, pricing, types of services, and descriptions of exploited minors using smartphones.
(s) Human traffickers rely on smartphones to communicate with each other, organize, and advertise their illicit business.
(t) Technology-facilitated sex trafficking networks rely upon anonymity of victims and traffickers in order to operate. Fully encrypted smartphones, immune to search warrants, make this possible.
(u) Individuals suspected of crimes are, upon the issuance of a court order, subject to search of their homes, vehicles, and even their bodies, but not their smartphones that are equipped with FDE.

SEC. 2.

 Section 22762 is added to the Business and Professions Code, immediately following Section 22761, to read:

22762.
 (a) For the purposes of this section, the following terms have the following meanings:
(1) “Smartphone” has the same meaning as in Section 22761.
(2) “Sold in California” has the same meaning as in Section 22761.
(3) “Leased in California,” or any variation thereof, means that the smartphone is contracted for a specified period of time to an end-use consumer at an address within the state.
(b) A manufacturer or operating system provider of a smartphone sold or leased in California on or after January 1, 2017, shall be subject to a civil penalty of two thousand five hundred dollars ($2,500) for each instance in which the manufacturer or operating system provider of the smartphone is unable to decrypt the contents of the smartphone pursuant to a state court order. A manufacturer or operating system provider who pays a civil penalty imposed pursuant to this subdivision shall not pass on any portion of that penalty to purchasers of smartphones. This civil penalty shall not preclude the imposition of any other penalty pursuant to law.
(c) The inability of a smartphone manufacturer or its operating system provider to decrypt the contents of the smartphone pursuant to this section shall not result in liability to the seller or lessor.
(d) A civil suit to enforce this section may only be brought by the Attorney General or a district attorney. A manufacturer or operating system provider shall not be subject to more than a single penalty pursuant to this section for each smartphone that it is unable to decrypt pursuant to a state court order.