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