On October 8, 2015, Governor Jerry Brown of California signed into law Senate Bill 178, known as the California Electronic Communications Privacy Act (Cal-ECPA). Cal-ECPA mandates that California law enforcement agencies obtain a search warrant or other lawful order before accessing or compelling the production of electronic data, with certain exceptions. The Act creates a degree of parity between digital and physical records in the protection against unlawful searches and brings California back to the forefront of digital privacy legislation.
In addition to limiting government access to personal electronic data as described above, Cal-ECPA:
- Requires that law enforcement provide contemporaneous notice to the target of an electronic search, stating the nature of the investigation being performed and the information sought.
- Allows for suspension of the notice requirement for 90 days only under specified emergency conditions with the explanation for delay provided with the notice once it is served on the person whose electronic data was searched.
- Addresses potential corporate liability by shielding corporations, their officers and employees from liability for providing records pursuant to an order made in accordance with Cal-ECPA.
- Allows for the suppression in a court of law of any electronic evidence obtained or retained in violation of Cal-ECPA.
In the course of its passage, Cal-ECPA created strange political bedfellows. The digital rights nonprofit Electronic Frontier Foundation (EFF) led the charge in favor of raising the bar for the search and production of personal electronic data, lending its name as a co-sponsor of the bill. EFF was joined by some of the biggest names in the technology industry because Cal-ECPA creates greater certainty and decreased liability for companies when they cooperate with lawfully issued orders to compel production of personal electronic data. Further, as the bill wound its way through the legislative process, law enforcement opposition ? which was initially significant - began to weaken, with some law enforcement agencies even supporting the bill for the procedural certainty it provides.