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).