On January 1, 2016, Senate Bill 178 (“SB 178”), the California Electronic Communications Privacy Act, took effect. SB 178 imposes significant limitations on the ability of a state government entity to compel the production of, or access to, information on an electronic device, including cellphones, laptop computers, tablets or any other device that stores, generates or transmits information in electronic form.
Although the legislative history appears to show that SB 178 was intended to prevent law enforcement from conducting unlawful searches, the language of the legislation does not limit its application to law enforcement entities. As written, SB 178 applies to all political subdivisions of the state, including school districts. Consequently, as discussed in more detail below, we recommend that districts update their “Acceptable Use of Technology” policies to reflect the requirements of SB 178.
SB 178 provides that a government entity shall not do any of the following:
- Compel the production of or access to electronic communication information from a service provider;
- Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; or
- Access electronic device information by means of physical interaction or electronic communication with the electronic device.
SB 178 defines “authorized possessor” as “the possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device.” It further defines “electronic device information” as “any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device.”
The new law permits governmental agencies to obtain electronic device information through physical interaction or electronic communications with a device:
- Pursuant to a search warrant;
- Pursuant to a wiretap order;
- With the specific consent of the authorized possessor of the device;
- With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
- If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic
device information; or
- If the government entity, in good faith, believes the device to be lost, stolen or abandoned, provided that the entity shall only access electronic device information to
attempt to identify, verify or contact the owner or authorized possessor of the device.
While the full impact of SB 178 on school districts is not yet clear, the new law seems very far-reaching and could significantly limit districts’ control over the electronic devices they issue to employees and students. SB 178 may also affect districts’ ability to conduct searches of students’ private devices in the disciplinary context. Because of SB 178, districts should contact legal counsel before confiscating/searching an electronic device. Districts should also review/revise their “Acceptable Use of Technology” policies to include provisions that, among other things:
- Define the term “authorized possessor”;
- Grant consent to the school district to access all district-owned electronic devices and the information created by those devices; and
- Indicate that consent is given to the district to access all information that is sent by or to district employees.
If you have any questions
regarding SB 178 or any other related issue, please call one of our six
F3 NewsFlash prepared by Kerrie E. McNally and John W. Norlin.
Kerrie is a Partner in the F3 Los Angeles and Inland Empire offices.
John is Special Counsel in the F3 San Diego office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.f3law.com.
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© 2016 Fagen Friedman & Fulfrost LLP
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