California Electronic Communications Privacy Act CALECPA Current as

California Electronic Communications Privacy Act CALECPA Current as of 12 OCT 2017

Overview 1. Law enforcement is now required to use a search warrant or other listed process to obtain: a. Electronic Communication Information from a service provider b. Electronic Device Information from an electronic device 2. Provides new requirements for the form of a search warrant targeting electronic information. 3. Notice to the target must now be given for any search warrant for electronic communication or device information. 4. Suppression is possible remedy.

Definitions Penal Code § 1546 1. Electronic Communication (EC) a. 2. Electronic Communication Information (ECI) a. 3. Transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature. Any information about an electronic communication. Subscriber information excluded. Electronic Communication Service (ECS) a. Provides ability to send/receive electronic communication, stores electronic information.

Definitions Penal Code § 1546 4. Electronic Device (ED) a. 5. Electronic Device Information (EDI) a. 6. Stores, generates, or transmits information in electronic format. Yes, it includes magnetic strips. Anything on the device, and including GPS information Subscriber Information (SI) a. Name, address, phone number, email, account number, length of service & types of services.

Prohibited Conduct Penal Code § 1546. 1(a) Government entity shall not: 1. Compel production of/access ECI from a service provider 2. Compel production of/access EDI from anyone/entity except authorized possessor of device 3. Access EDI by physical interaction or EC with the electronic device, but recipient of EC may voluntarily disclose We cannot compel access/production of things like text messages, call records, GPS information, e-mails, etc. from cell phone companies, internet providers, Google, Apple, etc. OR from the device itself.

Practical tips You can still: Unlock ED using thumbprint with reasonable force Put ED in airplane mode to protect content Obtain IMEI/model information physically embossed on the ED

Practical tips You can still: Authorized possessor on parole or PRCS? Search is okay. Authorized possessor on probation/MS/pre-trial release? If electronic device search a clear condition, then search is okay.

Obtaining Information – Not from the Phone Penal Code § 1546. 1(b) Government entity may compel the production of/access to ECI from a service provider OR EDI from a person/entity other than the authorized possessor pursuant to: 1. Search warrant 2. Wiretap order 3. Order for electronic reader records per Civil Code § 1798. 90 4. Subpoena, BUT NOT FOR CRIMINAL CASES We now can only use search warrants or wiretap orders to get this information – NOT subpoenas.

Obtaining Information – From the Phone Penal Code § 1546. 1(c) Government entity may access EDI by means of physical interaction or EC with the device only when there exists: 1. Search warrant 2. Wiretap order 3. Specific Consent of the authorized possessor 4. Specific Consent of the owner of the device when it was been reported lost or stolen

Obtaining Information – From the Phone Penal Code § 1546. 1(c) 5. Good faith belief that an emergency involving danger of death or serious physical injury requires access 6. Good faith belief that device is lost/stolen/abandoned – but only to ID owner 7. Seized from an inmate or found in a prison

Penal Code § 1546: Definitions Specific Consent: Consent provided directly to the government entity seeking information

Use of Subpoenas Penal Code § 1546. 1(i) Subpoenas still may be used to: Require a party to an EC to disclose the content of the communication. 1. a. i. e. subpoena someone suspect e-mailed with to disclose the content of that e-mail. 2. Require an entity that provides EC services to its employees in the course of business to disclose ECI associated with those business e -mails. 3. Require a service provider to provide SI.

Warrant Requirements Penal Code § 1546. 1(d) Any warrant for electronic information shall: Describe with particularity info to be seized by specifying 1. a. “Appropriate and reasonable: ” i. Time periods covered ii. Targeted individuals/accounts iii. Applications or services covered iv. Types of information sought

Warrant Requirements Penal Code § 1546. 1(d) 2. Require any unrelated information obtained be sealed. Not subject to further review absent court order. Exception: discovery obligations – PC 1054. 1 & 1054. 7 3. Comply with all other provisions of CA and Federal Law. 4. If directed to a service provider, include an order requiring the SP to provide an EC 1561 affidavit so the information obtained can be admissible per EC 1562.

Further Protections for Unrelated Info Penal Code § 1546. 1(e) When issuing the warrant, a court may: 1. Appoint a special master 2. Require that any unrelated information obtained be destroyed

Information Voluntarily Provided Penal Code § 1546. 1(f)/(g) A service provider may voluntarily disclose electronic communication/subscriber information when not otherwise prohibited by state or federal law. 2. However, the receiving government entity shall destroy that information within 90 days unless a. Specific consent of sender or recipient obtained b. Court order authorizing retention obtained c. Information relates to child porn and retained as part of multiagency database 1.

Information Obtained Pursuant to Emergency Penal Code § 1546. 1(h) If government obtains electronic information pursuant to an emergency involving danger/death/serious physical injury to person, the entity shall within 3 court days of obtaining the information: 1. Get a warrant 2. Get an order 3. File motion seeking approval. Motion must: a. State the facts giving rise to the emergency b. If applicable, a request supported by affidavit for delaying notification If denied either of these, immediate destruction of all information obtained and immediate notification.

Notice Requirements Penal Code § 1546. 2 1. Deliver notice to the identified target by mail/e-mail/other reasonable means. Informs the recipient that info has been compelled and states with “reasonable specificity” the nature of the government investigation. 2. 3. Include copy of the warrant (or written statement setting forth the facts in an emergency) with this notice. 4. Shall provide notice contemporaneously with the execution of the warrant, or within three days after obtaining the electronic information in an emergency. 5. Shall, if there is no identified target, provide notice to DOJ within three days to be published on its website within 90 days.

Requests to Delay Notice Penal Code § 1546. 2 May submit a request supported by affidavit for an order delaying notification 1. a. Court shall only issue that order if there is reason to believe that notification may have an “adverse result: ” i. Danger to life/safety OR Flight from prosecution OR Destruction of evidence OR Witness intimidation OR Serious jeopardy to an investigation or undue delay of trial b. Delay may not exceed 90 days c. Court may grant extensions of up to 90 days each time Upon expiration of delay: shall, serve/deliver the notice AND a copy of all electronic info obtained (or summary) including: 2. a. the number and types of records disclosed; b. date and time when earliest and latest records created; and c. statement of the grounds for the court’s determination to grant a delay in notifying the individual.

Remedy for Violations Penal Code § 1546. 4 The remedy for a violation of this chapter is suppression pursuant to Penal Code Section 1538. 5. 1. “Any person in a trial, hearing, or proceeding may move to suppress…. ” It appears the standing requirement has effectively been removed. 2. The AG may commence a civil action to compel any government entity to comply. 3. Any target may petition the issuing court to void/modify the warrant, not only for a violation of this chapter, but of the 4 th amendment as well.

Cal. ECPA-compliant Search Warrants Templates at http: //da. smcgov. org/Cal. ECPA

Common issues with Search Warrants “Non-responsive content” paragraph missing “Custodian of records” provision & attachment missing Correct notification document missing Language Too broad: “Any and all”- No Go! Too narrow: “i. Phones “Text & i. Pad” vs “All Electronic Devices” messages” vs “Text messages and Instant messages” Always include “apps” and “storage data”

Common issues with Search Warrants Justification for what evidence you are seeking 180 days worth of cell phone records. Why? Location data. Why? Instant Messages in a Child Porn case. Why? Authorization for search of cloud data Justify your date range Justify delayed notification appropriately Authorization forensic done by third party Authorization for return of records beyond 10 days

Common issues with Search Warrants Authorization for reasonable use of force to compel thumbprint Multiple services or devices? Get a single warrant. Unrelated data scenario: Unrelated Sealed PC data becomes pertinent to another investigation 1546. 1(d)(2) allows to unseal with an order However, Be data sealed still need to comply with 4 th amendment safe – get a warrant

Common issues with Search Warrants United States v. Hulscher - 2017 U. S. Dist. LEXIS 22874 Huron They PD gets SW for D’s phone in ID theft case seal unrelated data, but keep copy of full dump Later, ATF learns Huron PD has dump of D’s phone ATF investigating him for firearm offenses ATF gets copy of full dump from Huron PD ATF finds evidence of firearm offenses Evidence suppressed – violated 4 th amendment