Bill Text: CA SB1121 | 2015-2016 | Regular Session | Chaptered
Bill Title: Privacy: electronic communications.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-09-23 - Chaptered by Secretary of State. Chapter 541, Statutes of 2016. [SB1121 Detail]
Download: California-2015-SB1121-Chaptered.html
BILL NUMBER: SB 1121 CHAPTERED
BILL TEXT
CHAPTER 541
FILED WITH SECRETARY OF STATE SEPTEMBER 23, 2016
APPROVED BY GOVERNOR SEPTEMBER 23, 2016
PASSED THE SENATE AUGUST 25, 2016
PASSED THE ASSEMBLY AUGUST 23, 2016
AMENDED IN ASSEMBLY AUGUST 19, 2016
AMENDED IN ASSEMBLY AUGUST 1, 2016
AMENDED IN ASSEMBLY JUNE 23, 2016
AMENDED IN ASSEMBLY JUNE 14, 2016
AMENDED IN SENATE MARCH 29, 2016
INTRODUCED BY Senator Leno
FEBRUARY 17, 2016
An act to amend Sections 1534, 1546, 1546.1, and 1546.2 of the
Penal Code, relating to privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 1121, Leno. Privacy: electronic communications.
Existing law prohibits 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, order for electronic reader records, or subpoena
issued pursuant to specified conditions, except for emergency
situations, as defined. Existing law also specifies the conditions
under which a government entity may access electronic device
information by means of physical interaction or electronic
communication with the device, such as pursuant to a search warrant,
wiretap order, or consent of the owner of the device.
This bill would additionally authorize a government entity,
without a warrant or other order, to access electronic device
information by means of physical interaction or electronic
communication with the device: (1) if the device is seized from an
authorized possessor, as defined, who is serving a term of parole or
postrelease community supervision, as specified; (2) if the device is
seized from an authorized possessor who is subject to an electronic
device search as a condition of probation, mandatory supervision, or
pretrial release, as specified; or (3) for the purpose of accessing
information concerning the location or the telephone number of the
electronic device in order to respond to an emergency 911 call from
that device. The bill would also provide that the definition of
"electronic device" for purposes of the bill does not include a
magnetic strip on a driver's license or identification card, as
prescribed.
Existing law authorizes a service provider to voluntarily disclose
electronic communication information or subscriber information, as
specified. Existing law requires a government entity to destroy that
information within 90 days unless one or more specified circumstances
apply, including, among others, the government entity has or obtains
the specific consent of the sender or recipient of the electronic
communications about which information was disclosed.
This bill would also authorize a government entity to retain the
information beyond 90 days if the service provider or subscriber is,
or discloses the information to, a federal, state, or local prison,
jail, or juvenile detention facility, and all participants to the
electronic communication were informed, prior to the communication,
that the service provider may disclose the information to the
government entity.
This bill would make technical, nonsubstantive changes to these
provisions.
This bill would provide that the prohibition against a government
entity compelling the production of or access to electronic
communication information or electronic device information without a
search warrant, wiretap order, order for electronic reader records,
or subpoena does not limit the authority of the Public Utilities
Commission or the State Energy Resources Conservation and Development
Commission to obtain energy or water supply and consumption
information pursuant to the powers granted to them under the Public
Utilities Code or the Public Resources Code and other applicable
state law.
The bill would incorporate changes to Section 1546.1 of the Penal
Code proposed by both this bill and AB 1924, which would become
operative only if both bills are enacted and become effective on or
before January 1, 2017, and this bill is enacted after AB 1924.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1534 of the Penal Code is amended to read:
1534. (a) A search warrant shall be executed and returned within
10 days after date of issuance. A warrant executed within the 10-day
period shall be deemed to have been timely executed and no further
showing of timeliness need be made. After the expiration of 10 days,
the warrant, unless executed, is void. The documents and records of
the court relating to the warrant need not be open to the public
until the execution and return of the warrant or the expiration of
the 10-day period after issuance. Thereafter, if the warrant has been
executed, the documents and records shall be open to the public as a
judicial record.
(b) (1) A tracking device search warrant issued pursuant to
paragraph (12) of subdivision (a) of Section 1524 shall identify the
person or property to be tracked and shall specify a reasonable
length of time, not to exceed 30 days from the date the warrant is
issued, that the device may be used. The court may, for good cause,
grant one or more extensions for the time that the device may be
used, with each extension lasting for a reasonable length of time,
not to exceed 30 days. The search warrant shall command the officer
to execute the warrant by installing a tracking device or serving a
warrant on a third-party possessor of the tracking data. The officer
shall perform any installation authorized by the warrant during the
daytime unless the magistrate, for good cause, expressly authorizes
installation at another time. Execution of the warrant shall be
completed no later than 10 days immediately after the date of
issuance. A warrant executed within this 10-day period shall be
deemed to have been timely executed and no further showing of
timeliness need be made. After the expiration of 10 days, the warrant
shall be void, unless it has been executed.
(2) An officer executing a tracking device search warrant shall
not be required to knock and announce his or her presence before
executing the warrant.
(3) No later than 10 calendar days after the use of the tracking
device has ended, the officer executing the warrant shall file a
return to the warrant.
(4) (A) No later than 10 calendar days after the use of the
tracking device has ended, the officer who executed the tracking
device warrant shall notify the person who was tracked or whose
property was tracked pursuant to subdivision (a) of Section 1546.2.
(B) Notice under this paragraph may be delayed pursuant to
subdivision (b) of Section 1546.2.
(5) An officer installing a device authorized by a tracking
device search warrant may install and use the device only within
California.
(6) As used in this section, "tracking device" means any
electronic or mechanical device that permits the tracking of the
movement of a person or object.
(7) As used in this section, "daytime" means the hours between 6
a.m. and 10 p.m. according to local time.
(c) If a duplicate original search warrant has been executed, the
peace officer who executed the warrant shall enter the exact time of
its execution on its face.
(d) A search warrant may be made returnable before the issuing
magistrate or his or her court.
SEC. 2. Section 1546 of the Penal Code is amended to read:
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) 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. An electronic device does
not include the magnetic strip on a driver's license or an
identification card issued by this state or a driver's license or
equivalent identification card issued by another state.
(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 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.
(l) "Subscriber information" means the name, street address,
telephone number, email address, or similar contact information
provided by the subscriber to the service 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.
SEC. 3. Section 1546.1 of the Penal Code is amended to read:
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.
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 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.
(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) Pursuant to a tracking device search warrant issued pursuant
to paragraph (12) of subdivision (a) of Section 1524 and subdivision
(b) of Section 1534.
(4) With the specific consent of the authorized possessor of the
device.
(5) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.
(6) 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.
(7) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the government entity
shall only access electronic device information in order to attempt
to identify, verify, or contact the owner or authorized possessor of
the device.
(8) 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 or a secure area of a local detention facility
where inmates have access, 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. This paragraph shall not be
construed to supersede or override Section 4576.
(9) Except where prohibited by state or federal law, if the device
is seized from an authorized possessor of the device who is serving
a term of parole under the supervision of the Department of
Corrections and Rehabilitation or a term of postrelease community
supervision under the supervision of county probation.
(10) Except where prohibited by state or federal law, if the
device is seized from an authorized possessor of the device who is
subject to an electronic device search as a clear and unambiguous
condition of probation, mandatory supervision, or pretrial release.
(11) If the government entity accesses information concerning the
location or the telephone number of the electronic device in order to
respond to an emergency 911 call from that device.
(d) Any warrant for electronic information shall comply with the
following:
(1) The warrant shall describe with particularity the information
to be seized by specifying, as appropriate and reasonable, the time
periods covered, the target individuals or accounts, the applications
or services covered, and the types of information sought, provided,
however, that in the case of a warrant described in paragraph (1) of
subdivision (c), the court may determine that it is not appropriate
to specify time periods because of the specific circumstances of the
investigation, including, but not limited to, the nature of the
device to be searched.
(2) The 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 shall not be subject to
further review, use, or disclosure except pursuant to a court order
or to comply with discovery as required by Sections 1054.1 and
1054.7. 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 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. 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.
(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 either or both 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 the termination of the
current investigation and any related investigations or proceedings.
(f) A service provider may 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 government entity has or obtains the specific consent of
the sender or recipient of the electronic communications about which
information was disclosed.
(2) The government 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 government 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.
(4) The service provider or subscriber is, or discloses the
information to, a federal, state, or local prison, jail, or juvenile
detention facility, and all participants to the electronic
communication were informed, prior to the communication, that the
service provider may disclose the information to the government
entity.
(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 government entity shall, within three court 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, 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 obtained, and immediate notification pursuant to
subdivision (a) of Section 1546.2 if that notice has not already been
given, upon a finding that the facts did not give rise to an
emergency or upon rejecting the warrant or order application on any
other ground. This subdivision does not apply if the government
entity obtains information concerning the location or the telephone
number of the electronic device in order to respond to an emergency
911 call from that device.
(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.
(j) This section does not limit the authority of the Public
Utilities Commission or the State Energy Resources Conservation and
Development Commission to obtain energy or water supply and
consumption information pursuant to the powers granted to them under
the Public Utilities Code or the Public Resources Code and other
applicable state laws.
(k) This chapter shall not be construed to alter the authority of
a government entity that owns an electronic device to compel an
employee who is authorized to possess the device to return the device
to the government entity's possession.
SEC. 3.5. Section 1546.1 of the Penal Code is amended to read:
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.
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 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.
(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.
(5) Pursuant to an order for a pen register or trap and trace
device, or both, issued pursuant to Chapter 1.5 (commencing with
Section 630) of Title 15 of Part 1.
(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) Pursuant to a tracking device search warrant issued pursuant
to paragraph (12) of subdivision (a) of Section 1524 and subdivision
(b) of Section 1534.
(4) With the specific consent of the authorized possessor of the
device.
(5) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.
(6) 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.
(7) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the government entity
shall only access electronic device information in order to attempt
to identify, verify, or contact the owner or authorized possessor of
the device.
(8) 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 or a secure area of a local detention facility
where inmates have access, 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. This paragraph shall not be
construed to supersede or override Section 4576.
(9) Except where prohibited by state or federal law, if the device
is seized from an authorized possessor of the device who is serving
a term of parole under the supervision of the Department of
Corrections and Rehabilitation or a term of postrelease community
supervision under the supervision of county probation.
(10) Except where prohibited by state or federal law, if the
device is seized from an authorized possessor of the device who is
subject to an electronic device search as a clear and unambiguous
condition of probation, mandatory supervision, or pretrial release.
(11) If the government entity accesses information concerning the
location or the telephone number of the electronic device in order to
respond to an emergency 911 call from that device.
(12) Pursuant to an order for a pen register or trap and trace
device, or both, issued pursuant to Chapter 1.5 (commencing with
Section 630) of Title 15 of Part 1.
(d) Any warrant for electronic information shall comply with the
following:
(1) The warrant shall describe with particularity the information
to be seized by specifying, as appropriate and reasonable, the time
periods covered, the target individuals or accounts, the applications
or services covered, and the types of information sought, provided,
however, that in the case of a warrant described in paragraph (1) of
subdivision (c), the court may determine that it is not appropriate
to specify time periods because of the specific circumstances of the
investigation, including, but not limited to, the nature of the
device to be searched.
(2) The 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 shall not be subject to
further review, use, or disclosure except pursuant to a court order
or to comply with discovery as required by Sections 1054.1 and
1054.7. 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 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. 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.
(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 either or both 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 the termination of the
current investigation and any related investigations or proceedings.
(f) A service provider may 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 government entity has or obtains the specific consent of
the sender or recipient of the electronic communications about which
information was disclosed.
(2) The government 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 government 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.
(4) The service provider or subscriber is, or discloses the
information to, a federal, state, or local prison, jail, or juvenile
detention facility, and all participants to the electronic
communication were informed, prior to the communication, that the
service provider may disclose the information to the government
entity.
(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 government entity
shall, within three court 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, 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 obtained, and immediate notification pursuant to
subdivision (a) of Section 1546.2 if that notice has not already been
given, upon a finding that the facts did not give rise to an
emergency or upon rejecting the warrant or order application on any
other ground. This subdivision does not apply if the government
entity obtains information concerning the location or the telephone
number of the electronic device in order to respond to an emergency
911 call from that device.
(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.
(j) This section does not limit the authority of the Public
Utilities Commission or the State Energy Resources Conservation and
Development Commission to obtain energy or water supply and
consumption information pursuant to the powers granted to them under
the Public Utilities Code or the Public Resources Code and other
applicable state laws.
(k) This chapter shall not be construed to alter the authority of
a government entity that owns an electronic device to compel an
employee who is authorized to possess the device to return the device
to the government entity's possession.
SEC. 4. Section 1546.2 of the Penal Code is amended to read:
1546.2. (a) Except as otherwise provided in this section, any
government entity that executes a warrant, or obtains electronic
information in an emergency pursuant to Section 1546.1, shall 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 access, a notice that
informs the recipient that information about the recipient has been
compelled or obtained, 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. The
notice shall be provided contemporaneously with the execution of a
warrant, or, in the case of an emergency, within three court days
after obtaining the electronic information.
(b) (1) When a warrant is sought or electronic information is
obtained in an emergency 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 or emergency access, 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
access 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.
(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.
SEC. 5. Section 3.5 of this bill incorporates amendments to
Section 1546.1 of the Penal Code proposed by this bill and Assembly
Bill 1924. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2017, (2) each
bill amends Section 1546.1 of the Penal Code, and (3) this bill is
enacted after Assembly Bill 1924, in which case Section 1546.1 of the
Penal Code, as amended by Assembly Bill 1924, shall remain operative
only until the operative date of this bill, at which time Section
3.5 of this bill shall become operative, and Section 3 of this bill
shall not become operative.
