BILL ANALYSIS
SB 1428
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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
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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
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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