updated Sept. 9, 2015
Major Issues of Concern
IMPORTANT NOTE: Senate Bill 178 is expected to be passed by the California Senate on September 9th or 10th and sent to Governor Jerry Brown for signature. Gov. Brown has vetoed earlier versions of this bill in the past. If prosecutors and law enforcement — in California or other states — wish to be heard on these issues, they must provide expert feedback to the Governor within the next several days.
1. Peer-to-Peer Investigations
Most earlier versions of this bill would have barred ICACs from accessing a suspect’s “device information,” which would include GUIDS (global unique identifiers). This data is currently freely advertised by suspects on P2P networks and automatically collected and stored by the two major peer-to-peer undercover platforms (CPS and Roundup). As a result, California ICACs would have effectively been shut out of peer-to-peer investigations.
After protest by PROTECT, the authors amended the bill, but insufficiently. Since the bill allowed police to access device information with the “specific consent” of a CP trafficker, they simply changed the definition of “specific consent” to include sharing with “a member of the intended audience.” Their argument was that law enforcement would be considered a trafficker’s “intended audience” if sharing was done on a "public network." When PROTECT protested further, they added another amendment late last week: “Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a governmental entity.”
Is this language, based on the “intent” of child pornography traffickers, enough to stand up to challenge in California courts? The only honest answer is, “a judge could tell you.” We expect years of court battles if this bill becomes law, with a danger that convictions could be overturned.
2. Advance Notice to Suspects
S.B. 178 requires that law enforcement notify child pornography suspects they are coming. The exact language reads:
“… any government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information.”
Notice can be temporarily delayed (no more than 90 days), but it requires a trip to court, where law enforcement must make its case to a judge there is a risk evidence will be destroyed (or other adverse condition is likely).
It is unclear how out-of-state law enforcement issuing a subpoena or warrant in California would be able to meet this requirement.
3. Emergency Provision
S.B. 178 allows police to access device information (such as that routinely shared publicly by suspects and gathered by ICAC undercover systems) without a warrant, wiretap order or consent in cases of an "emergency," but this provision is drafted so narrowly it will be useless in most child sexual exploitation cases. An “emergency” is defined as risk of “death or serious physical injury.” Moreover, if law enforcement invokes the emergency provision, it must return to court again and prove that those conditions in fact existed. If they cannot be proven, the bill requires judges to destroy all evidence.
PROTECT explained to all Assembly Member offices in writing that most child sexual abuse and child pornography production does not cause “death or serious physical injury.” That point was also made by Assembly members during floor debate. PROTECT also pointed out that California sex offense statutes have long had a clear distinction between child rape and child rape with physical injury. The authors were unwilling to change this provision.
Senate Bill 178 is expected to be passed by the California Senate on September 9th or 10th and sent to Governor Jerry Brown for signature. Gov. Brown has vetoed earlier versions of this bill in the past. If prosecutors and law enforcement — in California or other states — wish to be heard on these issues, they must provide expert feedback to the Governor within the next several days. Law enforcement professionals in other states should also be aware that similar legislation is being introduced in other states.