BILL ANALYSIS
SB 1428
Page 1
SENATE THIRD READING
SB 1428 (Pavley)
As Amended August 2, 2010
Majority vote
SENATE VOTE :35-0
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Hagman, Beall, |Ayes:|Fuentes, Conway, |
| |Gilmore, Hill, | |Bradford, |
| |Portantino, Yamada | |Huffman, Coto, Davis, De |
| | | |Leon, Gatto, Hall, |
| | | |Harkey, Miller, Nielsen, |
| | | |Norby, Skinner, Solorio, |
| | | |Torlakson, Torrico |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
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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.
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.
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
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interception of wire, electronic digital pager, or electronic
cellular telephone communications under specified
circumstances.
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, moderate annual General Fund 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 Department of Justice's (DOJ) California Electronic
Interceptions Report, in 2009 there were 601 wiretap orders,
which 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 serve two years in state prison, the annual cost would be
about $300,000.
COMMENTS : 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 organized
crime and drug trafficking operations. Criminals should not
simply and trivially be able to move to electronic
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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."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
FN: 0005958