BILL ANALYSIS
AB 1428
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Date of Hearing: June 22, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1428 (Pavley) - As Amended: April 20, 2010
SUMMARY : Amends the existing wiretap provisions to include the
interception of modern types of contemporaneous two-way
electronic communications. Specifically, this bill :
1)Provides that the superior court can make an order authorizing
the interception of wire or electronic communications and
makes conforming changes in other sections to reference
"electronic communications" instead of "electronic digital
pager or electronic cellular communications."
2)Defines "electronic communication" as any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system, but does not include
any of the following:
a) Any wire communication as defined in the section;
b) Any communication made through a tone-only paging
device;
c) Any communications from a tracking device; and,
d) Electronic funds transfer information stored by a
financial institution in a communications system used for
the electronic storage and transfer of funds.
3)Defines "tracking device" as an electronic or mechanical
device that permits the tracking of the movement of a person
or object.
4)Defines "aural transfer" as an electronic or mechanical device
that permits the tracking of the movement of a person or
object.
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5)Provides that the court may grant oral approval for an
emergency interception of wire or electronic communication
without an order as specified. Approval for an oral
interception shall be conditioned upon filing with the court,
prior to midnight of the second full court day after approval,
a written application for an order. Approval of the ex parte
order shall be conditioned upon filing with the judge prior to
midnight of the second full court day after the oral approval.
6)Clarifies that no order shall authorize interception of any
wire or electronic communication for any period longer than is
necessary to achieve the objective of the authorization, nor
in any event longer than 30 days, commencing on the day of the
initial interception, or 10 days after the issuance of the
order, whichever comes first.
7)Provides that written reports outlining the achievements of
the wiretap shall be given to the judge who issues the wiretap
every 10 days instead of every six days.
8)Permits disclosure of the wiretap to comply with provisions in
existing law relating to notifications to defendants.
9)Permits disclosure of the contents of a wiretap to any judge
within the State of California.
10)Extends the sunset authorizing the use of wiretaps until
January 1, 2014.
EXISTING LAW :
1)Authorizes the Attorney General (AG), chief deputy attorney
general, chief assistant attorney general, district attorney
or the district attorney's designee to apply to the presiding
judge of the superior court for an order authorizing the
interception of wire, electronic digital pager, or electronic
cellular telephone communications under specified
circumstances. (Penal Code Section 629.50.)
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps. (Penal Code Section 629.51.)
3)Defines "aural transfer" as a transfer containing the human
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voice at any point between and including the point of origin
and the point of reception. (Penal Code Section 629.51.)
4)Specifies the crimes for which an interception order may be
sought: murder; kidnapping; bombing; criminal gangs; and
possession for sale, sale, transportation; or manufacturing of
more than three pounds of cocaine, heroin, PCP,
methamphetamine or its precursors; possession of a destructive
device, weapons of mass destruction or restricted biological
agents. (Penal Code Section 629.52.)
5)Provides that the court may grant oral approval for an
emergency interception of wire, electronic pager or electronic
cellular telephone communications without an order as
specified. Approval for an oral interception shall be
conditioned upon filing with the court, within 48 hours of the
oral approval, a written application for an order. Approval
of the ex parte order shall be conditioned upon filing with
the judge with in 48 hours of the oral approval. (Penal Code
Section 629.56.)
6)Provides that no order entered under this chapter shall
authorize the interception of any wire, electronic pager or
electronic cellular telephone or electronic communication for
any period loner than is necessary to achieve the objective of
the authorization, nor in any event longer than 30 days.
(Penal Section Code 629.58.)
7)Requires that written reports showing what progress has been
made toward the achievement of the authorized objective,
including the number of intercepted communications, be
submitted at least every six days to the judge who issued the
order allowing the interception. (Penal Code Section 629.60.)
8)Provides that whenever an order authorizing an interception is
entered the order shall require a report be made to the AG
showing what persons, facilities, or places are to be
intercepted pursuant to the application, and the action taken
by the judge on each of these applications. (Penal Code
Section 629.61.)
9)Requires the Attorney General to prepare and submit an annual
report to the Legislature, the Judicial Council and the
Director of the Administrative Office of the United States
Court on interceptions conducted under the authority of the
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wiretap provisions and specifies what the report shall
include. (Penal Code Section 629.62.)
10)Provides that applications made and orders granted shall be
sealed by the judge. Custody of the applications and orders
shall be where the judge orders. The applications and orders
shall be disclosed only upon a showing of good cause before a
judge and shall not be destroyed except on order of the
issuing or denying judge, and in any event shall be kept for
10 years. (Penal Code Section 629.66.)
11)Provides that a defendant shall be notified that he or she
was identified as the result of an interception prior to the
entry of a plea of guilty or nolo contendere, or at least 10
days, prior to any trial, hearing or proceedings in the case
other than an arraignment or grand jury proceeding. Within 10
days prior to trial, hearing or proceeding the prosecution
shall provide to the defendant a copy of all recorded
interceptions from which evidence against the defendant was
derived, including a copy of the court order, accompanying
application and monitory logs. (Penal Code Section 629.70.)
12)Provides that any person may move to suppress intercepted
communications on the basis that the contents or evidence were
obtained in violation of the Fourth Amendment to the United
States Constitution or of California electronic surveillance
provisions. (Penal Code Section 629.72.)
13)provides that the AG, any deputy attorney general, district
attorney or deputy district attorney or any peace officer who,
by any means authorized by this chapter has obtained knowledge
of the contents of any wire, electronic pager, or electronic
cellular telephone communication or evidence derived there
from, may disclose the contents to one of the individuals
referred to in this section and to any investigative or law
enforcement officer as defined in subdivision (7) of Section
2510 of Title 18 of the United State Code to the extent that
the disclosure is permitted pursuant to Penal Code Section
629.82 and is appropriate to the proper performance of the
official duties of the individual making or receiving the
disclosure. No other disclosure, except to a grand jury, of
intercepted information is permitted prior to a public court
hearing by any person regardless of how the person may have
come into possession thereof. (Penal Code Section 629.74.)
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14)Provides that if a law enforcement officer overhears a
communication relating to a crime that is not specified in the
wiretap order, but is a crime for which a wiretap order could
have been issued, the officer may only disclose the
information and thereafter use the evidence, if, as soon as
practical, he or she applies to the court for permission to
use the information. If an officer overhears a communication
relating to a crime that is not specified in the order, and
not one for which a wiretap order could have been issued or
any violent felony, the information may not be disclosed or
used except to prevent the commission of a crime. No evidence
derived from the wiretap can be used unless the officers can
establish that the evidence was obtained through an
independent source or inevitably would have been discovered.
In all instances, the court may only authorize use of the
information if it reviews the procedures used and determines
that the interception was in accordance with state wiretap
laws. [Penal Code Section 629.82 (b).]
15)Provides that the provisions governing wiretap sunsets on
January 1, 2012. (Penal Code Section 629.98.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California's
current wiretap law (Penal Code 629.50), sunsets on January 1,
2012, and allows wiretapping (interception) of telephone
communications and electronic digital pages by law enforcement
under specific circumstances. This bill re-enacts the basic
provisions of the current wiretap statute, but also updates
California's wiretapping law to include interception of
communications by e-mail, blackberry, instant messaging by
phone and other forms of contemporaneous two-way electronic
communication.
"According to the author, the 'Digital Age' in which we now live
has offered tremendous opportunities in telecommunications for
both consumers and businesses alike, but unfortunately has
provided new options for today's criminals to coordinate
illicit activities. The ability to intercept new forms of
electronic communication recognizes law enforcement's periodic
need to obtain critical evidence in some of the state's most
serious criminal investigations, especially when pursuing
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organized crime and drug trafficking operations. Criminals
should not simply and trivially be able to move to electronic
communications and so easily escape law enforcement's reach.
California's current wiretap law is used only through due
process of law, only for specific serious crimes and only as a
last resort when other investigative techniques have been
exhausted. California law enforcement and multi-agency task
forces have used the law with great success since its
enactment to solve some of the most difficult crimes, while
maintaining a strict emphasis on the protection of individual
privacy.
"SB 1428 recognizes the expanding use of electronic
communications in the planning of criminal activity and
modernizes our state wiretap law so that court-approved
interceptions of communication from the latest technologies
are a relevant option for law enforcement investigations.
"In Los Angeles County, it is estimated that 50 to 75 major
narcotic division cases (usually involving large seizures and
multiple defendants) and approximately 25 to 40 homicide cases
are affected annually by California's wiretap statute."
2)Overview of Wiretap Law : In general, California law prohibits
wiretapping. (Penal Code Section 631.) However, a judge may
grant a wiretap if, after reviewing a law enforcement agency's
application, he or she makes specified findings. (Penal Code
Section 629.52.) These findings include that law enforcement
exhaust all normal investigative procedures and fail prior to
applying for a wire intercept. (Penal Code Section 629.50.)
Prior to the enactment of Penal Code Section 629.50 et seq.,
wiretapping statutes did not permit the interception of oral
or electronic communications and permitted wiretapping only
during the investigation of specified offenses involving
controlled substances.
The Legislature enacted Section 629.50 et seq. in 1995 "in order
to expand California wiretap law to conform with federal law"
as it existed at the time. [People v. Zepeda (2001) 87
Cal.App.4th 1183, 1196.]
Federal law regulates the interception of wire, oral, and
electronic communications under 18 United States Code Sections
2510 to 2520.
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3)2006 Legislative Report : On August 2, 2006, the Department of
Justice released the AG's "Annual Report on Electronic
Interceptions" for 2005. Specifically, the report articulated
the following:
Thirteen counties (Alameda, Fresno, Imperial, Los Angeles,
Monterey, Orange, Riverside, Sacramento, San Bernardino, San
Diego, San Luis Obispo, Stanislaus, and Ventura) submitted
reports to the AG's Office detailing their use of electronic
intercepts.
a) The remaining 45 counties reported no electronic
intercept activity during 2005.
b) The total number of intercept orders granted by superior
court judges increased from 190 in 2004 to 282 in 2005.
c) Of the 282 wiretap orders granted by California superior
courts in 2005, 245 were used to investigate narcotics
offenses, while 36 were used to investigate violent crimes.
d) Nine hundred and eighty individuals were arrested in the
as a result of the 282 wiretaps authorized in 2005.
e) The cost of electronic intercepts is as follows:
i) Total Cost: $25,514,664
ii) Average Cost per Arrest: 16,703
iii) Average Cost per Conviction: 33,407
iv) Average Cost per Order: 6,813
f) Of the total 283 wiretap orders sought, 282 were granted
by superior court judges.
g) Ninety-five thousand, one hundred and sixty-nine
incriminating conversations were intercepted while 566,060
non-incriminating conversations were intercepted.
4)Wire or Electronic Communication : Under existing law, the AG
or a district attorney may make an application to a judge of
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the superior court for an application authorizing the
interception of a wire, electronic pager or electronic
cellular telephone. The law regulates the issuance, duration
and monitoring of these orders and imposes safeguards to
protect the public from unreasonable interceptions. The law
also defines wire communication, electronic pager
communication and electronic cellular telephone communication
for the purposes of the intercept orders.
5)Argument in Support : According to the Los Angeles County
District Attorney's Office , "[w]e are the sponsors of Senate
Bill 1428 (Pavley). SB 1428 updates California's wiretap law
to cover new forms of technology which are not considered
significant factors when the current law was significantly
revised in 2001 and 2002. Specifically, the term 'electronic
communication' is added.
"Wiretap orders are obtained for the purpose of intercepting
contemporaneous conversations of drug dealers, organized crime
suspects and persons who are suspects in murder cases.
However, current law is ineffective if the conversation is
conducted by e-mail, text messages or other forms of
electronic communications. SB 1428 updates the law by
permitting the interception of contemporaneous conversations
that are conducted by means other than telephone or cell phone
calls. Stored communication would continue to be subject to a
search warrant and would not be subject to his bill.
"California's wiretap law protects California residents against
wiretapping by any private or government entity except under
very narrow circumstances. It must be approved in advance by
the presiding judge or the Superior Court or his or her
designee as part of an investigation of murder, drug
trafficking involving a large amount of a controlled
substance, a felony gang crime, or a crime involving weapons
of mass destruction. The law may only be used if approved in
writing by top management of the investigating law enforcement
organization and by the elected district attorney or his or
her chief deputy. Additionally, wiretap authority is for a
limited duration and will only be approved upon a showing that
all other investigative techniques are ineffective."
6)Argument in Opposition : According to the American Civil
Liberties Union , "[t]he ACLU has consistently opposed
expansion of the state's wiretap law. Our objections are
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based on the fact that wiretapping violates basic privacy
rights. A wiretap, because it picks up both sides of all
conversations of all calls made by or to all persons using the
telephone under surveillance, by definition constitutes a
general search - committed not only against he person under
suspicion but against countless other callers connected with
the suspect only remotely or not at all.
"According to the 2008 U.S. Department of Justice Report on the
wiretaps conducted by federal and state authorities, there
were 418 reported applications for wiretaps in California in
2008 with California law enforcement authorities intercepting
over 80,000 conversations, the vast majority of them innocent
conversations. Expanding the authority of state officials to
obtain wiretaps for 'electronic communications', which
includes emails, texting and websurfing, will only further
exacerbate these statistics and intrusions into privacy
rights."
7)Prior Legislation :
a) SB 1016 (Boatwright), Chapter 971, Statutes of 1995,
established California's wire intercept statute. The
initial sunset date was January 1, 1999.
b) SB 688 (Alaya), Chapter 355, Statutes of 1977, extended
wire intercept sunset provision until January 1, 2003. SB
688 modified the definition of a "peace officer" to include
federal law enforcement in addition to state agents.
c) AB 74 (Washington), Chapter 605, Statutes of 2002,
delayed expiration of authority to intercept wire
communications until January 1, 2008. AB 74 permitted
additional designees the ability to apply for wire
intercept orders and allowed for additional modifications
of orders after the initial application. AB 74 added all
electronic paging devices to the list of devices that could
be intercepted and allowed the Judicial Council to
designate procedures for identifying a succession order of
judges permitted to authorize wire intercept orders. AB 74
permitted the AG to provide information (such as the
history of order applications for the target) to the
judicial officer after the order is authorized, rather than
exclusively requiring the basis for the order prior to the
application.
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REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Peace Officers' Association
California Police Chief's Association
California State Sheriffs' Association
Los Angeles District Attorney's Office
San Bernardino Sheriff's Office
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744