BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1428
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          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
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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 


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