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AB-522 State departments: investigations and hearings: administrative subpoenas.(2023-2024)



Current Version: 02/07/23 - Introduced

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AB522:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 522

Introduced by Assembly Member Kalra

February 07, 2023

An act to add Section 11181.5 to the Government Code, relating to state government administration.


LEGISLATIVE COUNSEL'S DIGEST


AB 522, as introduced, Kalra. State departments: investigations and hearings: administrative subpoenas.
Existing law authorizes the head of a department in state government to make investigations and prosecute actions concerning all matters relating to the business activities and subjects under the jurisdiction of the department, violations of any law or rule or order of the department, and other matters as may be provided by law. Existing law requires the head of a department, in any hearing in any part of the state or in any investigation conducted pursuant to the law described above, to issue process and subpoenas in a manner consistent with the California Constitution and the United States Constitution. Existing law requires the process and subpoenas to be served in the same manner as provided for the service of a summons, as prescribed.
Existing law, the Electronic Communications Privacy Act, prohibits a government entity from compelling the production of, or access to, electronic communication information from a service provider, subject to certain exceptions, including by authorizing a government entity to compel the production of, or access to, electronic communication information from a service provider pursuant to a subpoena if 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.
This bill would authorize a department to use an administrative subpoena to obtain electronic communication information from a service provider only if certain conditions are met, including that the department has served notice of the administrative subpoena on the customer, as prescribed, and a copy of the administrative subpoena is attached to the notice.
This bill would require a service provider to make a copy of any electronic communication information within the scope of the subpoena and to retain it only until the information is disclosed pursuant to the subpoena, or the subpoena is quashed or modified. The bill would require a service provider to maintain, for a period of 5 years, a record of any disclosure pursuant to the bill. The bill would require a service provider to provide to a customer, upon request and the payment of the reasonable cost of reproduction and delivery, any part of the record maintained pursuant to the bill that relates to the customer.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11181.5 is added to the Government Code, to read:

11181.5.
 (a) For purposes of this section:
(1) “Customer” means a person or entity that receives an electronic communication service from a service provider.
(2) “Electronic communication information” has the meaning provided in Section 1546 of the Penal Code.
(3) “Electronic communication service” has the meaning provided in Section 1546 of the Penal Code.
(4) “Service provider” has the meaning provided in Section 1546 of the Penal Code.
(b) In addition to any other requirements that govern the use of an administrative subpoena, an administrative subpoena may be used to obtain a customer’s electronic communication information from a service provider only if all of the following conditions are satisfied:
(1) The department has served notice of the administrative subpoena on the customer pursuant to Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.
(2) A copy of the administrative subpoena is attached to the notice.
(3) The administrative subpoena includes the name of the department that issued it and the statutory purpose for which the electronic communication information is to be obtained.
(4) The notice includes a statement in substantially the following form:

“The attached subpoena was served on a communication service provider to obtain your electronic communication information. The service provider has made a copy of the information specified in the subpoena. Unless you (1) move to quash or modify the subpoena within 10 days of service of this notice, and (2) notify the service provider that you have done so, the service provider will disclose the information pursuant to the subpoena.”
(5) The department has served a proof of service on the service provider stating its compliance with paragraphs (1) to (4), inclusive.
(c) Unless the customer has notified the service provider that a motion to quash or modify the subpoena has been filed, the service provider shall produce the electronic communication information specified in the subpoena no sooner than 10 days after the department served the proof of service required by paragraph (5) of subdivision (b).
(d) If a customer files a motion to quash or modify an administrative subpoena issued pursuant to subdivision (b), the proceeding shall be afforded priority on the court calendar, and the matter shall be heard within 10 days from the filing of the motion to quash or modify.
(e) This section does not require a service provider to inquire whether, or to determine that, the department has complied with the requirements of this section if the documents served on the service provider facially show compliance.
(f) This section does not preclude a service provider from notifying a customer of the receipt of an administrative subpoena pursuant to subdivision (b).
(g) (1) A service provider shall maintain, for a period of five years, a record of any disclosure of its customers’ electronic communication information pursuant to this section.
(2) The record maintained pursuant to this subdivision shall include a copy of the administrative subpoena.
(3) Upon customer request and the payment of the reasonable cost of reproduction and delivery, a service provider shall provide to the customer any part of the record maintained pursuant to this subdivision that relates to the customer.
(h) (1) If an administrative subpoena is served on a service provider pursuant to this section, the service provider shall promptly make a copy of any electronic communication information that is within the scope of the subpoena and within the possession of the service provider at the time that the subpoena was served.
(2) The copy made pursuant to this subdivision shall be preserved only until it is disclosed pursuant to the subpoena or the subpoena is quashed or modified.