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SB-178 Privacy: electronic communications: search warrant. (2015-2016)



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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  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, location,  or time location  of the sender or recipients at any point during the communication, or  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 means  consent delivered provided  directly to the government entity seeking information that is given in response to a specific request and is valid only for a specified period of time. Specific consent may be withdrawn at any time. information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity. 
(k) (l)  “Subscriber information” means the name, street address, phone telephone  number, email address, or similar contact information provided by the subscriber to the provider of an electronic communication service for the purpose of establishing a communication channel between that subscriber and that provider, a subscriber  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 device, except with the specific consent of the authorized possessor of the device. electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity. 
(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, subject to subdivision (c) 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  from a service provider, or  compel the production of or authorize  access to the contents of any electronic communication initiated after the issuance of the warrant. 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.
(4) Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(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.
(7) Except where prohibited by state or federal law, if the device is seized from an inmate’s possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(c) (d)  Any warrant or wiretap order  for electronic communication information or electronic device information  information  shall comply with the following:
(1) The order shall be limited to only that information necessary to achieve the objective of the warrant or wiretap order, including by specifying the  warrant shall describe with particularity the information to be seized 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 order shall identify the effective date upon which the warrant 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. warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.  
(3) The order 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 or wiretap orders. warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code. 
(d) (e)  When issuing any warrant or wiretap  order for electronic communication information or electronic device information,  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. the termination of the current investigation and any related investigations or proceedings. 
(e) (f)  A service provider may disclose, but shall not be required to disclose,  voluntarily 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 one or more of the following circumstances apply:
(1) The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(f) (2)  If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (e), 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  The entity 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.
(3) The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(g) (h)  If a government entity requests that a service provider disclose  obtains electronic  information pursuant to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C., the  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  an application for a warrant or order authorizing obtaining the electronic information or a  motion seeking approval of the requested  emergency disclosures that shall set forth the facts giving rise to the emergency.  emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2.  The court shall promptly rule on the application or  motion and shall order the immediate destruction of all information received in response to the request  obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given,  upon a finding that the facts did not give rise to an emergency under either Section 2702(b)(8) or 2702(c)(4) of Title 18 U.S.C. 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 any 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.
(3) Require a service provider to provide subscriber information.
1546.2.
 (a) Except as otherwise provided in this section, any government entity that executes a warrant or wiretap order or issues warrant, or obtains electronic information in  an emergency request  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. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information. 
(b) If there is no identified target of a warrant, wiretap order, or emergency request 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, to all individuals about whom information was disclosed.
(c) (b)  (1) When a wiretap order or search warrant is sought  warrant is sought or electronic information is obtained in an emergency  under Section 1546.1, the government entity may include in the application  submit  a request supported by a sworn affidavit for an order delaying notification and prohibiting the party on whom the warrant or order is served from notifying the subject of the warrant or order.  any party providing information from notifying any other party that information has been sought.  The court shall grant issue  the request order  if the court determines that there is reason to believe that notification of the existence of the warrant  may have an adverse result, 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 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 warrant  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 warrant, each individual whose electronic communication information was acquired,  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 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.
(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. The department may redact names or other personal identifying information from the reports.
(4) (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  Any person in a trial, hearing, or proceeding may move to suppress any electronic information  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. 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) If a warrant or wiretap order does not comply  An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent  with this chapter, a service provider,  or the California Constitution or the United States Constitution, or a service 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, order, or other legal process  may petition the issuing court to void or modify the warrant or wiretap order  warrant, order, or process,  or to order the destruction of any information obtained in violation of this chapter. 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.
1546.6.
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) 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 (g) 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.
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.