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 ----------------------------------------------------------------- |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 | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 SB 1428 Page 2 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 SB 1428 Page 3 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 SB 1428 Page 4 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