CalECPA

Includes Historical cell site records & info obtained via Stingray or IMSI catcher!

PC § 1546(g): “Electronic device information”

is “any information stored on or generated through the operation of an electronic device, including the current and

prior locations of the device.”

SB 178: CalECPA

PC § 1546.2(a)

SB 178: CalECPA

Notice Requirement

• For warrant or emergency cases, notice must be served to “the identified targets of the warrant or emergency request.”
• Notice must indicate info about recipient is being sought and must state “with reasonable specificity the nature of the government investigation.”

SB 178: CalECPA

Notice Requirement

PC § 1546.2(a)

• Notice must include a copy of the warrant or, in emergency cases, shall provide a written statement with facts to support the declaration of an emergency situation.
• This notice must be provided to the recipient at the same time as the warrant’s execution, or 3 days after the data is collected when it’s an emergency case.

SB 178: CalECPA

When a service provider voluntarily shares ECI or subscriber info, govt must destroy the data within 90 days, unless

• there’s specific consent from the sender or recipient of the electronic communications,

• a court order is obtained, or
• if govt reasonably believes info is related to child pornography and retains it within a “multiagency database” on child pornography or related investigations

Notable pts: no case has addressed whether a defendant may ask the court to issue a “trial subpoena” under § 2703(b)(1)(B)(i) of SCA. The statute limits production to a subpoena issued by “a governmental entity” & PD is not GE.

Notable quote: "Although the issue is not now before us, we question whether such a limitation would be constitutional in light of the requirements of Davis and Hammon."

FB @ 460, FN 17

Defense Access:

FB v. Sup Ct.

(1) Did COA properly conclude defense is not entitled to pretrial access to records in the possession of 3PP [FB, Instagram, and Twitter] under SCA (18 U.S.C. § 2701, et seq.) and Hammon (1997) 15 Cal.4th 1117?

(2) Does an order barring pretrial access to the requested records violate defendants' right to compulsory process and confrontation under 6th Amend or their DP right to a fair trial?

(3) Should court limit or overrule People v. Hammon? (Held: no 6th Am rt to pre-trial disclosure of priv. info)

Defense Access:

FB v. Sup Ct. Pending issues

Defendant Derrick Hunter argues:

1. DP & 6th Am requires defense access to Social Media records before trial

2. Denying Pretrial Access to Defense, but not Prosecution, Violates DP under Wardius v. Oregon

3. CPC Compels Pretrial Production by SDT

4. Denying Pretrial Production denies Defendant Effective Assistance of Counsel in Plea Negotiations

5. This Court Should Overrule Hammon

Defense Access:

FB v. Sup Ct.

Defense Access:

FB v. Sup Ct.

SF Pub Def Supp Amicus argues:

1. Public postings not covered by SCA

2. Social media communication is not “private”

3. SCA restrictions on disclosure must yield to Defendant's 6th Am & DP rights to obtain relevant information for defense, subject to trial court oversight of privacy interests

* Stay tuned *

Summary Review ECPA v CalECPA

Brainstorms

• what kinds of digital search issues are you encountering in your cases?
• Are cops requiring clients to divulge passwords and login info?
• Is probation/parole requiring digital search as a term of supervision?
• Are police executing digital searches without a warrant?
• How do we get social media recs now?

• Defense is not a governmental entity covered by SCA (US v. Amawi, 552 F. Supp. 2d 679 (N.D. Ohio 2008))
• Worried about “anomalous result” of DA needing warrant to get records but defense could get with ex-parte SDT (Facebook, 240 Cal.App.4th at 224)

• FB COA reasoned: defense has other ways to access:
• Get from DA who got records w/ search warrant
• Subpoena witness directly to produce materials
• Wait for TRIAL - trial court far better equipped to balance Defendant’s rt to effective cross-exam and witness privacy (FB @ 225)

Defense Dilemma

But beware: Leon's Good Faith Exception

• No exclusion when police rely on good faith in warrant/order later found invalid US v. Leon, 468 U.S. 897 (1984)
• However, cops can't rely on “facially deficient” order:
• 47 U.S.C. § 1002(a) (1994): Can't use PR to get CSLI
• People v. Blair (1979) 25 Cal. 3d 640: State police cannot obtain electronic records without a warrant

SB 178: CalECPA

PC § 1546(f): “Electronic device” is

“a device that stores, generates or transmits information in electronic form” (Ex. Cell phone, computer, tablet, USB drives, digital camera, etc.)

SB 178: CalECPA

SB 178: CalECPA

PC § 1546.1(e): Issuing court may

• Appoint special master to supervise the search
• Require irrelevant information be destroyed ASAP

Content

• ECS content < 180 days old: Govt must get PC warrant for content
• ECS > 180 days & RCS: Govt may:
• PC warrant
• 2703(d) order
• subpoena (admin or Grand Jury)

CA PC § 1546(l): ECI excludes “subscriber information”, which is

limited to name, address, phone number, email address and other contact information, account number, length of service and types of service

SB 178: CalECPA

Before AB 929

PC § 1546.1 (b), (c): Police need warrant or wiretap to compel production or access to:

• ECI from service provider

• Electronic device information from any person or entity other than the authorized possessor

Warrant Requirement

SB 178: CalECPA

Compare to 18 U.S.C. § 2703(c)(2)

SB 178: CalECPA

PC § 1546(d): “Electronic communication info” (ECI) includes:

• “any information about an electronic communication or the use of an electronic communication service…”
• metadata, IP address information, cell site location records, etc.

PC § 1546.1(d): Warrant must

• Describe with “particularity” information to be seized by specifying time periods covered and target individuals or accounts
• Seal irrelevant information from review without further court order

Warrant Requirement

SB 178: CalECPA