BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1428
                                                                  Page  1

          Date of Hearing:   August 4, 2010

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                   SB 1428 (Pavley) - As Amended:  August 2, 2010 

          Policy Committee:                             Public  
          SafetyVote:7-0

          Urgency:     No                   State Mandated Local Program:  
          Yes    Reimbursable:              No

           SUMMARY  

          This bill updates current wiretap provisions to reference  
          additional types of contemporaneous two-way electronic  
          communications. Specifically, this bill: 

          1)Specifies the superior court may authorize the interception of  
            wire or electronic communications and makes conforming changes  
            in other sections to reference "electronic communications"  
            rather than "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, as specified.  

          3)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. 

           FISCAL EFFECT

           Moderate annual GF costs, potentially in the low hundreds of  
          thousands of dollars, to the extent updating the code allows for  
          additional wiretaps, and to the extent those taps result in  
          additional convictions and state prison commitments. 

          According to the Department of Justice's (DOJ's) California  








                                                                  SB 1428
                                                                  Page  2

          Electronic Interceptions Report, in 2009, there were 601 wiretap  
          orders, which the DOJ indicates resulted in 891 arrests and 185  
          convictions. (The crimes for which arrests were made vary, but  
          narcotics cases accounted for 76% of the convictions.) If this  
          bill results in just a 2% increase in convictions, and the  
          offenders each served two years in state prison, the annual cost  
          would be about $300,000.  

           COMMENTS  

           1)Rationale  . This bill 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, "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."


           2)Support  . This bill is sponsored by the L.A. District  
            Attorney's Office, which states, "SB 1428 updates California's  
            wiretap law to cover new forms of technology which were 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."


           3)Overview of Wiretap Law  . As noted in the Assembly Public  
            Safety Committee analysis, in general, California law  








                                                                  SB 1428
                                                                  Page  3

            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. 


           4)Opposition  . The ACLU consistently opposes extension or  
            expansion of the state's wiretap law.  "Our objections are  
            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 the person under  
            suspicion but against countless other callers connected with  
            the suspect only remotely or not at all? 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." 

           5)California's current wiretap scheme sunsets January 2012  . The  
            sponsor and author have agreed to honor the sunset date and  
            seek extension or deletion of the sunset in 2011. 


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081