LOS ANGELES COUNTY DISTRICT ATTORNEYS OFFICE

LEGISLATIVE PROPOSAL
NAME:

DONN HOFFMAN

DIVISION:

HIGH TECHNOLOGY CRIME / CIRT

ADDRESS:

201 N. FIGUEROA, STE 1200

LOS ANGELES, CA 90012

TELEPHONE:

213/580-3378

FAX:

213-250-8769

Proposal to Modernize and Amend PC1524.2,

Corp Code 2105(a)(6)(B) and 17708.02 or 16959
1. Problem or deficiency in existing law:
Evidence such as text messages, email, mobile app data, IP logs, photos and documents
stored in the cloud, and countless other kinds of electronically stored information have
become vital sources of evidence for criminal prosecutions. This evidence is in the hands
of third party companies that are often located outside of California. Fortunately, there
are state and federal laws that work in tandem to give us authority not only to obtain this
evidence but also to admit in it court expediently. Unfortunately, however, the enabling
state statute has not kept up with the popularization of new forms of business associations
and new methods for service of process. The California law applies to corporations but
not to LLCs. And the California law does not explicitly recognize electronic service of
process other than by facsimile.
Federal law governs the collection of electronic communications1 from providers of
electronic communications services (ECS) and remote computing services (RCS). The
Stored Communications Act governs the collection of such evidence when it is in storage
(i.e., in situations other than a wiretap)2. The SCA requires covered entities to honor
1

ECPA broadened the definition of electronic communications to include just about any
electronically stored information, with a few exceptions. 18 U.S. Code 2510(12) "electronic
communication" means any transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic or photooptical system that affects interstate or foreign commerce, but does not
include [voice, tone-only pagers, tracking devices, electronic funds transfers].
2

18 U.S. Code 2703

government requests to preserve and turn over information about subscribers and their
transactions and stored communications.3 The SCA requires that a covered entity honor a
properly issued search warrant from any state court of general criminal jurisdiction
authorized by the law of that State to issue search warrants.4 The federal statute
defines the entities to which it applies according to their activities.5 It does not limit the
types of business associations to which it applies.
California has a complementary statute governing the collection of such evidence from
remote computing and electronic communications services. Cal. Pen. Code 1524.2
requires that California corporations and foreign Corporations qualified to business in our
state honor search warrants for information about subscribers and their transactions and
stored communications, wherever those records are stored.6 For good measure, Cal.
Corp. Code 2105 specifically requires foreign corporations to consent to service
pursuant to PC1524.2. Thus, the advantages of PC1524.2 are not available when the
foreign business does not fall under Corp Code 102 or 2105. Many of the third parties
that we rely on for crucial evidence are partnerships, not corporations.7
A second problem is that the statutes definition of properly served is out-of-date. The
following forms of service are permitted: delivered by hand, or in a manner reasonably
allowing for proof of delivery if delivered by United States mail, overnight delivery
service, or facsimile.8 It is becoming increasingly common for ISPs and others to
insist on electronic service, either by email or via a web portal established for this
purpose.9
The proposed legislation would (1) update the kinds of business associations covered by
1524.2 to include LLCs and other entities formed for the purpose of conducting
business; and (2) update the definition of properly served to comport with modern
practices.
2. Describe your proposal in detail:
Our proposed legislation would amend Cal. Pen. Code 1524.2 to include other forms of
business associations.
3

18 U.S. Code 2703(a), 18 U.S. Code 2703(d)

18 U.S. Code 2711(3)(B)

18 U.S. Code 2711(2) the term "remote computing service" means the provision to the public
of computer storage or processing services by means of an electronic communications system
6

Cal. Pen. Code 1524.2. Cal. Corp. Code 102. Cal. Corp. Code 2105.

Verizon Wireless, for example, is a Delaware LLC. Interestingly, the laws original author in
1999 cited out-of-state corporations such AOL as the object of the bill. AOL later converted to
an LLP for several years.
8
9

PC1524.2(a)(6)

Facebook and Ebay/PayPal are two companies that have established web portals for the
exclusive use of law enforcement. Yahoo!, T-Mobile, Pinger, and CapitalOne are examples of
the new norm, which is service by email.

a. PC1524.2
i. Replace corporation with business entity throughout.10
ii. (a)(4): Insert , any limited liability company as defined in
subdivision (t) Section 17000 of the Corporations Code, excluding
foreign limited liability companies, any limited partnership formed
under the laws of this state, any business association formed under
the laws of this state, and any other business entity organized under
the laws of this state at the end of the paragraph.
iii. (a)(5): Insert , any business association formed under the laws of
a foreign jurisdiction, any foreign limited liability company as
defined in subdivision (j) of Section 17701.02, any limited
partnership formed under the laws of a foreign jurisdiction, and
any other business entity organized under the laws of a foreign
jurisdiction. at the end of the paragraph.
In addition, our proposal would amend the definition of properly served in
PC1524.2(a)(6) to reflect the common and increasingly prevalent practice of
communications and computing service companies to insist on electronic service of
process. Such policies may request that service be by email, or that process be effected
via a web portal provided by the company.
a. PC1524.2
i.

(a)(6): Insert , or any other means agreed upon by the parties,

including electronic mail or submission via a web portal which the
recipient has designated for the purpose of service of process at
the end of the paragraph.

b. CC2105(a)(6)(B)
i. Insert , or any other means agreed upon by the parties, including
electronic mail or submission via a web portal which the recipient
has designated for the purpose of service of process at the end of
the paragraph.
c. CC17708.2 or CC16962 or CC1695911
i. Add subsection in an appropriate place: Consent under this
paragraph extends to service of process directed to the foreign
10
11

Alternative: any entity or association

We have identified these three hooks for the revised language. We recommend seeking
guidance from the Department of Corporations or other experts.

corporation's agent in California for a search warrant issued

pursuant to Section 1524.2 of the Penal Code, or for any other
validly issued and properly served search warrant, for records or
documents that are in the possession of the foreign corporation and
are located inside or outside of this state. This subparagraph shall
apply to a foreign corporation that is a party or a nonparty to the
matter for which the search warrant is sought. For purposes of this
subparagraph, "properly served" means delivered by hand, or in a
manner reasonably allowing for proof of delivery if delivered by
United States mail, overnight delivery service, or facsimile to a
person or entity listed in Section 16962 of the Corporations Code,
or any other means agreed upon by the parties, including electronic
mail or submission via a web portal which the recipient has
designated for the purpose of service of process.
3. Estimate the number of cases in our office which would be affected by your
proposal:
The proposed changes affect both the legal and investigative sides of the office. The
legal side depends on PC1524.2 to authenticate ISP evidence in court without the
difficulty and expense of out-of-state witnesses. The investigations side relies on
PC1524.2 to serve warrants expeditiously.
Our Bureau of Investigation served several hundred search warrants on ISPs, ECSs
and RCSs in 2013. Outside agencies that file with us served many more such
warrants. Our prosecutors increasingly rely on electronic evidence from third parties,
and the prevalence of such evidence can be expected to grow dramatically.
4. Facts / Case Law / Statistics / Reports / Studies in support of your proposal:
This proposal was inspired by difficulties CIRT has encountered in gaining
cooperation from hosting companies located outside of California. One particularly
recalcitrant company is organized as an LLC. Without the authentication provisions
in PC1524.2 we would anticipate great difficulty in securing a live witness to
authenticate evidence obtained from them. In addition, because the Stored
Communications Act requires a state warrant, issued using state warrant
procedures12 the current limitation to corporations could provide a determinedly
uncooperative ISP a means to challenge the validity of the warrant.
Historically, ISPs have been cooperative with law enforcement. That is changing.
Post-Snowden, ISPs are responding to consumer sentiment and litigation-anxiety by
scrutinizing law enforcement request more carefully. ISPs face potential civil
liability for violations of the Stored Communications Act, and in the current climate

12

18 U.S. Code 2703(a) and (b)

they can be expected to reject a warrant they perceive as facially invalid in order to
preserve their access to the laws safe harbor provision.13
5. Are there alternatives to your proposal, either legislative or non-legislative,
which might accomplish the same objective? If so, why is your proposal a better
alternative?
None. It is possible that case law could cure both issues, but that is a risky and uncertain
remedy.
6. Are you aware of any constitutional issues raised by your proposal? If so,
briefly discuss.
None. PC1524.2 burdens intrastate and interstate commerce equally. No recipient of a
PC1524.2 warrant has challenged the law in any published case.
7. Fiscal impact: How much will your proposal cost? Will your proposal result in
any cost savings to our office, to other entities, or to the state?
No costs to the state.
Our office and other police and prosecutorial agencies may save money. There is the
possibility of substantial savings in investigation travel and other expenses related to
obtaining and executing out-of-state search warrants, and bringing out-of-state witnesses
to court.
8. Support: Please list individuals and organizations likely to support your
proposal:
Law enforcement, police and prosecutors will likely support the proposal.
Possible support from affected businesses that would likely welcome the statutory
recognition of their preferred modes for service of process.
9. Opposition: Please list individuals and organizations likely to oppose your
proposal:
Civil liberties and privacy advocates may oppose the changes based on reflex to oppose
any perceived expansion of governments ability to obtain electronic communications
and other electronically stored information.
Anti-government groups may oppose the changes based on reflex to oppose any law they
perceived as business regulation, however it is unlikely any businesses that would
actually be affected by the change would oppose it. Legitimate ECS and RCS businesses
currently comply voluntarily with PC1524.2 regardless of their structure, and as noted
13

18 U.S. Code 2707

above would likely welcome the statutory recognition of their preferred modes for service
of process.
10. Urgency: Is there a need for speed? How fast must this matter move?
This matter is not urgent.
11. Prior legislation: Has there been any prior legislation in this area? If so, please
provide bill author, the year the legislation was introduced, and whether the
legislation was enacted?
Sen. Leno proposed SB 467 in 2013. That bill was a major overhaul of 1524.2 but did
not address either of the technical issues our proposal is aimed at.
12. Will you be available for consultation and, if necessary, to travel to Sacramento
to testify regarding this legislation between February 1 and September 1 of next
year?
Yes.
13. ATTACHMENTS:
A copy of the proposed language is attached.