California AB 1242: Search Warrant Abortion Attestation

October 21, 2022
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On September 27, 2022 the California State Governor passed AB 1242 into law, effective immediately. The California law impacts search warrants, pen register, trap & trace, and wire tap in all 50 states. Simply put, electronic service providers based in California are prohibited from complying with legal process if the investigation involves abortion.

At the center of the legislation is the keyword “prohibited violation”. This article discusses what prohibited violations are, what AB 1242 changed in the law, and how law enforcement a cross the US needs to do to comply with the changes.

Prohibited Violation: Abortion

California Assembly Bill 1242 and California Penal Code Section 629.51 defines a “prohibited violation” as a violation of a law that creates liability from providing, facilitating, or obtaining an abortion that is lawful under California law. As defined, the only prohibited violations under California law are directly related to abortion. Assuming that the bill withstands the legal challenges to come, the definition of prohibited violation may change in the future.

California Law Enforcement

New changes in the law send a very clear message to California’s law enforcement. If the case involves abortion then Investigators are prohibited from getting search warrants. It also applies to pen registers, traps & traces, and wire taps. The prohibitions are summarized below for quick reference, but we recommend reading the sections from the Penal Code directly so you can explain the situation as questions arise.

1524(h) – No warrant shall be issued within the State of California for any item or items that pertain to an investigation into a prohibited violation.

1524.2(c)(2) – A California corporation shall not comply with search warrant unless it includes an attestation that the evidence sought is not related to an investigation of a prohibited violation.

13778.2 (a) – A California law enforcement agency or officer shall not knowingly arrest any person for performing, supporting, or aiding in the performance of an abortion in this state, or obtaining an abortion in this state, if the abortion is lawful under the laws of this state.

13778.2 (b) – A California public agency, or any employee in their official capacity, shall not cooperate with or provide information to any individual or agency or department from another state or, to the extent permitted by federal law, to a federal law enforcement agency regarding an abortion that is lawful under the laws of this state and that is performed in this state.

The bill also amended CalECPA to address prohibited violations in § 1546.5 stating that a California Electronic Service Provider (ESP) or a ESP whose principal executive offices are located in California shall not provide information or assistance that relates to a prohibited violation.

1546.5 (a) – A California corporation or a corporation whose offices are located in California that provides electronic communications services 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 that relates to an investigation or enforcement of a prohibited violation.

Non-California Law Enforcement

State and Local law enforcement outside of California are not immune from AB 1242. Governor Newsom cannot prevent a law enforcement agency in another state from securing a search warrant to investigate abortion, however he can control how California corporations respond to one.

California Penal Code section 1524.2(c)(1) states that a California Electronic Service Provider, when served with a warrant issued by another state to produce records that would reveal customer data or communications, shall produce those records as if that warrant had been issued by a California court, but shall not produce records when the ESP knows that the warrant relates to an investigation into, or enforcement of, a prohibited violation.

The Silicon Valley and Bay Area in California is home to the most popular Electronic Service Providers like Facebook, Snapchat, Google, & TikTok. Chances are, if a law enforcement outside of California is investigating an abortion related matter, they will eventually run into a California based ESP. Because California corporations are required to abide by the new law, they are prohibited from complying with the search warrant.

AB 1242 compliant search warrants

Search warrants, pen registers, traps & traces, and wire taps for all California companies should include, or be accompanied by, an attestation that the evidence sought is not related to a prohibited violation regardless of what State they are issued from. Currently there is no guidance on what the attestation has to look like, either a standardized form or a simple sentence in the warrant, but the law is clear that it has to be included.

While the Penal Code does not expressly state that a search warrants originating from California are required to have the attestation, we highly suggest adding one to avoid processing delays. Internet and Electronic Service Providers like Instagram may not understand the differences between California and non-California warrants and default to requesting one. Rather than arguing with the company, the simple addition will get your returns back sooner.

Warrant Builder’s solution

Warrant Builder has automated the AB 1242 process and checks for search locations based in California. If the Officer certifies that the case does not relate to a prohibited violation, the appropriate attestation statement is added directly to their search warrant. If the Officer certifies that the case does relate to a prohibited violation, a warning appears informing them of the new law and prevents them from completing a warrant that cannot be served.

Not sure if your warrant is California AB 1242 compliant? You can trust! We keep up to date on changes like these so you don’t get surprised by warrant rejections.  Get started writing by signing up for a free trial.