Criminal procedure: prohibited violations., the official text

An act to amend Sections 629.51, 1524.2, and 1546.5 of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL'S DIGEST

Existing law authorizes a court to issue various orders relating to criminal investigations, including the interception of wire or electronic communications, the installation and use of a pen register or trap and trace device, or a search warrant upon specified grounds. Existing law prohibits the issuance of any orders or warrants for the purpose of investigating or recovering evidence of a prohibited violation, as defined. Existing law requires an out-of-state warrant for specified records to include an attestation that the evidence sought is not related to an investigation into, or enforcement of, a prohibited violation. Existing law prohibits the production of records by a California corporation when the corporation knows or should know that the out-of-state warrant relates to an investigation into, or enforcement of, a prohibited violation.
This bill would include exercising any rights protected by the First Amendment to the United States Constitution within the definition of “prohibited violation.” The bill would expand the prohibition on the production of records relating to investigation into, or enforcement of, prohibited violations to federal court orders.

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

SECTION 1.
Section 629.51 of the Penal Code is amended to read:
629.51.
(a) For the purposes of this chapter, the following terms have the following meanings:
(1) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a like connection in a switching station), furnished or operated by any person engaged in providing or operating these facilities for the transmission of communications.
(2) “Electronic communication” means any 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, but does not include any of the following:
(A) Any wire communication defined in paragraph (1).
(B) Any communication made through a tone-only paging device.
(C) Any communication from a tracking device.
(D) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.
(3) “Tracking device” means an electronic or mechanical device that permits the tracking of the movement of a person or object.
(4) “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.
(5) (A) “Prohibited violation” means any violation of law that creates liability for, or arising out of, any of the following:
(i) Providing, facilitating, or obtaining a legally protected health care activity, as defined in Section 1549.15, that is lawful under California law.
(ii) Intending or attempting to provide, facilitate, or obtain a legally protected health care activity, as defined in Section 1549.15, that is lawful under California law.
(iii) Exercising any rights protected by the First Amendment to the United States Constitution.
(B) As used in this paragraph, “facilitating” or “facilitate” means assisting, directly or indirectly in any way, with the obtaining of a legally protected health care activity, as defined in Section 1549.15, that is lawful under California law.
(b) This chapter applies to the interceptions of wire and electronic communications. It does not apply to stored communications or stored content.
(c) The act that added this subdivision is not intended to change the law as to stored communications or stored content.

SEC. 2.
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 the Electronic Communications Privacy Act of 1986 in Chapter 121 (commencing with Section 2701) of Part I of Title 18 of the United States Code. This section does not apply to corporations that do not provide those services to the general public.
(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, or any other means specified by the recipient of the search warrant, including email or submission via an internet web portal that the recipient has designated for the purpose of service of process.
(b) The following provisions 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 to the general public, 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) If 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) (1) A California corporation that provides electronic communication services or remote computing services to the general public, when served with a warrant issued by a federal court or 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, but shall not produce records when the corporation knows or should know that the warrant relates to an investigation into, or enforcement of, a prohibited violation, as defined in Section 629.51.
(2) A California corporation shall not comply with subdivision (c) unless the warrant includes, or is accompanied by, an attestation that the evidence sought is not related to an investigation into, or enforcement of, a prohibited violation, as defined in Section 629.51.
(3) A California corporation served with a warrant described in paragraph (1) is entitled to rely on the representations made in an attestation described in paragraph (2) in determining whether the warrant relates to an investigation into, or enforcement of, a prohibited violation, as defined in Section 629.51.
(d) A cause of action shall not 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.

SEC. 3.
Section 1546.5 of the Penal Code is amended to read:
1546.5.
(a) A California corporation or a corporation whose principal executive offices are located in California that provides electronic communications services shall not, in California, provide records, information, facilities, or assistance in accordance with the terms of a warrant, court order, subpoena, wiretap order, pen register trap and trace order, or other legal process issued by, or pursuant to, the procedures of a federal court or another state or a political subdivision thereof that relates to an investigation into or enforcement of a prohibited violation, as defined in Section 629.51.
(b) The Attorney General may commence a civil action to compel any California corporation or a corporation whose principal executive offices are located in California that provides electronic communications services to comply with the provisions of this section.
(c) A California corporation or a corporation whose principal executive offices are located in California, 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, subpoena, wiretap order, pen register trap and trace order, or other legal process issued by, or pursuant to, the procedures of a federal court or another state or a political subdivision thereof, except where the corporation knew or should have known that the warrant, court order, subpoena, wiretap order, pen register trap and trace order, or other legal process relates to an investigation into or enforcement of a prohibited violation, as defined in Section 629.51.