California is poised to enact AB-1242 which on Wednesday passed both legislative chambers and is now awaiting Governor Gavin Newsom’s signature. AB-1242 prohibits California companies that provide electronic communication services (ECSPs) from complying with out-of-state law enforcement requests related to the investigation or enforcement of laws restricting abortion. If signed, AB-1242 takes immediate effect.
AB-1242 offers California companies some protection in refusing to comply with out-of-state law enforcement requests relating to abortion inquiries. However, AB-1242 will likely place California providers in a conflict of laws position that forces them to choose, in some circumstances, between compliance with AB-1242 or compliance with long-arm criminal statutes in the issuing state. But, even in that scenario, AB-1242’s enactment should protect affected ECSPs from accusations of willful violations elsewhere. Such conflict of law issues will likely only increase as legislators in other states rush to copy—or defeat—the effect of blocking statutes such as AB-1242.
AB-1242 Modifies Existing California Law
Existing law requires California ECSPs to comply with a warrant issued by another state when the warrant seeks records that reveal the identity of the corporation’s users, data stored by or on behalf of the user (including the content of user communications), and data related to usage of the corporation’s services, among other things. Under these laws, California companies must treat the “foreign” warrants as if they had been issued by a California court. Such a law is generally referred to as a reciprocity statute.
AB-1242 changes that background law in three primary ways—all of which seek to frustrate or “block” out-of-state investigations or enforcement actions restricting abortion. Specifically, AB-1242 seeks to block out-of-state “investigations into and enforcement of” any law that creates liability for an abortion that would be legal in California (hereafter an “Abortion Inquiry”).
Attestation
AB-1242 now requires an out-of-state warrant to include or be accompanied by “an attestation that the evidence sought is not related to an investigation into, or enforcement of” an Abortion Inquiry. Thus, an out-of-state warrant that has no attestation now appears invalid under California law.
Prohibition on Compliance with Out-of-State Warrants for California ECSPs
Second, AB-1242 prohibits a California ECSP from producing records pursuant to an out-of-state warrant when the corporation knows or should know that the warrant relates to the investigation into or enforcement of an Abortion Inquiry.
Prohibition on Compliance with Out-of-State Legal Process for California ECSPs & ECSPs with HQs in California
Third, AB-1242 prohibits both California ECSPs and ECSPs with a principal place of business in California from responding to any out-of-state legal process (not just warrants) that relate to an Abortion Inquiry.
How and To Whom AB-1242 Applies
The first change requiring out-of-state warrants to include an attestation that the warrant is not related to an Abortion Inquiry is relatively straightforward. And AB-1242 appears to provide a safe harbor entitling California ECSPs to rely on any attestation with which they are provided.
a California ECSP is “entitled to rely on the representations made in an attestation . . . determining whether the warrant relates to an investigation into, or enforcement of, a[n] [Abortion Inquiry]”).
AB-1242, § 8 (enacting 1524.2(c)(3)
Further, under California law it was already clear that “no cause of action shall lie” against any corporation or its officers, employees, agents, etc., for providing records pursuant to the reciprocity law and that protection now extends to compliance with AB-1242 (though it permits civil liability for non-compliance where the ECSP knew or should have known the warrant related to an Abortion Inquiry).
The second and third changes mandated under AB-1242 provide for the same basic prohibition on compliance with out-of-state legal process relating to Abortion Inquiries. However, each section of the bill appears to implement the prohibition slightly differently.
AB-1242 Section 8, as detailed above, applies only to California ECSPs. Under Section 8, California ECSPs may not produce records in response to an out-of-state warrant “when the corporation knows or should know that the warrant relates to an investigation into, or enforcement of a prohibited violation.”
AB-1242 Section 9, on the other hand, applies more broadly to both (1) California ECSPs and (2) ECPSs incorporated elsewhere whose principal place of business is located in California. We refer to these ECSPs as “Covered ECSPs.”
Under AB-1242 Section 9, Covered ECSPs:
shall not, in California, provide records, information, facilities, or assistance in accordance with the terms of a warrant, court order, subpoena, wiretap order, pen register trap and trace order, or other legal process issued by, or pursuant to, the procedures of another state or a political subdivision thereof that relates to an [Abortion Inquiry].
There is a lot in these provisions to unpack. We read AB-1242 Section 9 to prohibit Covered ECPSs “in California” from:
- providing “records, information, facilities or assistance”
- pursuant to legal process
- issued pursuant to the procedures of another state or its political subdivisions
- which relates to an investigation into or enforcement of
- a violation of law that creates “liability for” or “arising out” of
- the provision or attempted/intended provisions, facilitation, or obtaining of an abortion that would be lawful in California.
This provision raises many questions. Section 9, unlike Section 8, applies (it seems) only to conduct occurring “in California.” The scope of this jurisdictional hook is unclear. Since the legal process covered by Section 9 will not necessarily be accompanied by an attestation, it will be up to each ECSP to determine the nature of “foreign” process it receives.
Further, the analysis under Section 9 appears slightly different for California ECSPs—as distinguished from ECSPs with a principal place of business in California. The former may never comply with an out-of-state warrant that the corporation knows or should know related to an Abortion Inquiry. This is because AB-1242 Section 8, as described above, prohibits the California ECSP from responding to such a warrant, without reference to conduct “in California.” The extent to which a California ECSP may/must comply with other out-of-state process (such as a subpoena) relating to Abortion Inquiries, however, could in fact depend on the location of the company’s legal functions and data storage.
Enforcement, Penalties, and the Conflicts of Law Likely to Arise
To the extent the law is clear, AB-1242 may be enforced through civil actions brought by the state ‘s Attorney General.
There appear to be no other penalties in California for noncompliance with AB-1242, but complying with the law may create a conflict of laws issue with the laws of other states.
Many states (California included) have so-called “long-arm statutes.” These state laws purport to give the state’s warrants, and, in some cases other legal process, extraterritorial effect.
When properly served with a subpoena, court order, or search warrant issued by a Florida court or other applicant [in compliance with ECPA], an out-of-state corporation subject to this section shall provide to the applicant all records sought pursuant to such subpoena, court order, or warrant within 20 business days after receipt, or the date indicated within the subpoena, if later, including those records maintained or located outside the State of Florida.
Fla. Stat. § 92.605(2)(b)
Where officials in abortion-restricting states seek to ramp up enforcement and are frustrated by a California ECSP’s non-compliance because of AB-1242, these officers will likely seek to penalize the ECSP through any sanctions available under the issuing state’s laws. Still, the fact that AB-1242 is on the books should protect the ECP from “willful” violations of these long arm laws until an ECF’s obligations under the competing laws are more clearly determined by a court of competent jurisdiction.
AB-1242 by its own terms raises many questions. It is likely to trigger a race by legislators to expand the reach of their own state’s reproductive laws. The conflicts between the laws will not be easily resolved and may even raise constitutional concerns under the dormant Commerce Clause or Full Faith and Credit Clause.
