Continuing a flurry of recent legislative activity (see posts here and here), the California legislature on Tuesday passed a bill requiring that California law enforcement agencies obtain a search warrant to compel the production of communications content (e.g., emails and social media messages) from providers of electronic communication services. A service provider may provide stored content to law enforcement without a search warrant if the service provider, in good faith, believes that an emergency involving the danger of death or serious physical injury to a person require disclosure without delay. The bill—S.B. 467—was introduced by Senator Mark Leno and is sponsored by the Electronic Frontier Foundation and supported by the ACLU of California. It will be enacted into law and become effective on January 1, 2014 if signed by Governor Jerry Brown or if Governor Brown has not vetoed the bill before October 13, 2013.
Currently, the Stored Communications Act (“SCA”) (part of the federal Electronic Communications Privacy Act (“ECPA”)) requires law enforcement to obtain a search warrant for stored communications held by a service provider for less than 180 days or that have not been opened by the recipient, but only requires less rigorous forms of legal process—for example, a subpoena—for opened, stored communications held for more than 180 days. (This distinction arose because in 1986 when the SCA was enacted, email typically was hosted on service providers’ servers temporarily and then downloaded by users after a short period of time).
Earlier this year the U.S. Department of Justice took the position that there is no longer a principled basis to treat email less than 180 days old differently from email more than 180 days old, or to provide less protection for opened emails than for unopened emails. However, other obstacles have slowed ECPA reform at the federal level. In the meantime, Texas enacted legislation in June that, similar to the California bill, requires law enforcement to obtain a search warrant in order to obtain any form of stored content. Additionally, as a practical matter, some service providers already require a search warrant before disclosing stored content to law enforcement based on the Sixth Circuit’s 2010 decision in United States v. Warshak, which held that email content is protected by the Fourth Amendment and only can be disclosed with a search warrant in a criminal investigation.
Law enforcement groups such as the California District Attorneys Association and the California Police Chiefs Association have objected to S.B. 467, arguing that the bill is unnecessary in light of the existence of federal statutes and could create confusion by applying different rules to private communications systems.
This post was updated on September 27, 2013.