BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1428|
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UNFINISHED BUSINESS
Bill No: SB 1428
Author: Pavley (D)
Amended: 8/2/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 4/13/10
AYES: Leno, Cedillo, Hancock, Huff, Wright
NO VOTE RECORDED: Cogdill, Steinberg
SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/27/10
AYES: Kehoe, Alquist, Corbett, Denham, Leno, Price,
Walters, Wolk, Wyland, Yee
NO VOTE RECORDED: Cox
SENATE FLOOR : 35-0, 6/1/10
AYES: Aanestad, Alquist, Ashburn, Calderon, Cedillo,
Cogdill, Corbett, Correa, Cox, Denham, DeSaulnier,
Ducheny, Dutton, Florez, Hancock, Harman, Hollingsworth,
Huff, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod,
Padilla, Pavley, Price, Romero, Runner, Simitian,
Steinberg, Strickland, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Oropeza, Walters, Wiggins, Vacancy,
Vacancy
ASSEMBLY FLOOR : 76-0, 8/17/10 - See last page for vote
SUBJECT : Criminal investigation: interception of
communications
SOURCE : Los Angeles District Attorneys Office
CONTINUED
SB 1428
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DIGEST : This bill amends the existing wiretap provisions
to include the interception of modern types of
contemporaneous two-way electronic communications and to
make other changes to the intercept law.
Assembly Amendments : (1) delete the extended 2012 repeal
date, and (2) make clarifying changes to the definition of
electronic communication.
ANALYSIS : Existing law authorizes the Attorney General,
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 interception of wire,
electronic digital pager, or electronic cellular telephone
communications under specified circumstances. (Penal Code
Section 629.50.)
This bill provides instead 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."
Existing law defines "wire communication, electronic pager
communication," "electronic cellular communication," and
"aural transfer" for the purposes of wiretaps. (Penal Code
Section 629.51.)
Existing law defines aural transfer as a transfer
containing the human voice at any point between and
including the point of origin and the point of reception.
This bill 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:
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1. Any wire communication as defined in the section.
2. Any communication made through a tone-only paging
device.
3. Any communications from a tracking device.
4. Electronic funds transfer information stored by a
financial institution in a communications system used
for the electronic storage and transfer of funds.
This bill defines "tracking device" as an electronic or
mechanical device that permits the tracking of the movement
of a person or object.
This bill defines aural transfer as an electronic or
mechanical device that permits the tracking of the movement
of a person or object.
This bill provides that this chapter applies to the
interceptions of wire and electronic communications. It
does not apply to stored communications or stored content.
Existing law specifies the crimes for which an interception
order may be sought: murder, kidnapping, bombing, criminal
gangs, and possession for sale, sale, transportation, or
manufacturing of more than three pounds of cocaine, heroin,
PCP, methamphetamine or its precursors, possession of a
destructive device, weapons of mass destruction or
restricted biological agents. (Penal Code Section 629.52.)
Existing law provides that the court may grant oral
approval for an emergency interception of wire, electronic
pager or electronic cellular telephone communications
without an order as specified. Approval for an oral
interception shall be conditioned upon filing with the
court, within 48 hours of the oral approval, a written
application for an order. Approval of the ex parte order
shall be conditioned upon filing with the judge with in 48
hours of the oral approval. (Penal Code Section 629.56.)
This bill provides instead that the above apples to the
interception of wire or electronic communications and
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provides that the filing with the judge must be by midnight
of the second full court day after the oral approval.
Existing law provides that no order entered under this
chapter shall authorize the interception of any wire,
electronic pager or electronic cellular telephone or
electronic communication for a any period loner than is
necessary to achieve the objective of the authorization,
nor in any event longer than 30 days. (Penal Code Section
629.58.)
This bill 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.
Existing law requires that written reports showing what
progress has been made toward the achievement of the
authorized objective, including the number of intercepted
communications, be submitted at least every six days to the
judge who issued the order allowing the interception.
(Penal Code Section 629.60.)
This bill provides instead that the reports shall be
submitted at least once every 10 days commencing with the
date of the signing of the order.
Existing law provides that whenever an order authorizing an
interception is entered the order shall require a report be
made to the Attorney General showing what persons,
facilities, or places are to be intercepted pursuant to the
application, and the action taken by the judge on each of
these applications. (Penal Code Section 629.61.)
Existing law requires the Attorney General to prepare and
submit an annual report to the Legislature, the Judicial
Council and the Director of the Administrative Office of
the United States Court on interceptions conducted under
the authority of the wiretap provisions and specifies what
the report shall include. (Penal Code Section 629.62.)
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Existing law provides that applications made and orders
granted shall be sealed by the judge. Custody of the
applications and orders shall be where the judge orders.
The applications and orders shall be disclosed only upon a
showing of good cause before a judge and shall not be
destroyed except on order of the issuing or denying judge,
and in any event shall be kept for 10 years. (Penal Code
Section 629.66.)
This bill provides that the orders shall also be disclosed
for compliance with the provisions of section 629.70.
Existing law provides that a defendant shall be notified
that he or she was identified as the result of an
interception prior to the entry of a plea of guilty or nolo
contendere, or at least 10 days, prior to any trial,
hearing or proceedings in the case other than an
arraignment or grand jury proceeding. Within 10 days prior
to trial, hearing or proceeding the prosecution shall
provide to the defendant a copy of all recorded
interceptions from which evidence against the defendant was
derived, including a copy of the court order, accompanying
application and monitory logs. (Penal Code Section
629.70.)
Existing law provides that any person may move to suppress
intercepted communications on the basis that the contents
or evidence were obtained in violation of the Fourth
Amendment to the United States Constitution or of
California electronic surveillance provisions. (Penal Code
Section 629.72.)
Existing law provides that the Attorney General, any deputy
attorney general, district attorney or deputy district
attorney or any peace officer who, by any means authorized
by this chapter has obtained knowledge of the contents of
any wire, electronic pager, or electronic cellular
telephone communication or evidence derived there from, may
disclose the contents to one of the individuals referred to
in this section and to any investigative or law
enforcement officer as defined in subdivision (7) of
Section 2510 of Title 18 of the United State Code to the
extent that the disclosure is permitted pursuant to Section
629.82 and is appropriate to the proper performance of the
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official duties of the individual making or receiving the
disclosure. No other disclosure, except to a grand jury,
of intercepted information is permitted prior to a public
court hearing by any person regardless of how the person
may have come into possession thereof.. (Penal Code Section
629.74.)
This bill provides that the contents of any wire or
electronic communication may also be disclosed to any judge
or magistrate in the state.
Existing law provides that if a law enforcement officer
overhears a communication relating to a crime that is not
specified in the wiretap order, but is a crime for which a
wiretap order could have been issued, the officer may only
disclose the information and thereafter use the evidence,
if, as soon as practical, he or she applies to the court
for permission to use the information. If an officer
overhears a communication relating to a crime that is not
specified in the order, and not one for which a wiretap
order could have been issued or any violent felony, the
information may not be disclosed or used except to prevent
the commission of a crime. No evidence derived from the
wiretap can be used unless the officers can establish that
the evidence was obtained through an independent source or
inevitably would have been discovered. In all instances,
the court may only authorize use of the information if it
reviews the procedures used and determines that the
interception was in accordance with state wiretap laws.
(Penal Code Section 629.82 (b).)
Department of Justice's (DOJ) 2006 Legislative Report
On August 2, 2006, DOJ released the Attorney General's (AG)
"Annual Report on Electronic Interceptions" for 2005.
Specifically, the report articulated the following:
Thirteen counties (Alameda, Fresno, Imperial, Los
Angeles, Monterey, Orange, Riverside, Sacramento, San
Bernardino, San Diego, San Luis Obispo, Stanislaus,
and Ventura) submitted reports to the AG's Office
detailing their use of electronic intercepts. The
remaining 45 counties reported no electronic
intercept activity during 2005. The total number of
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intercept orders granted by superior court judges
increased from 190 in 2004 to 282 in 2005. Of the
282 wiretap orders granted by California superior
courts in 2005, 245 were used to investigate
narcotics offenses, while 36 were used to investigate
violent crimes.
Nine hundred and eighty individuals were arrested as
a result of the 282 wiretaps authorized in 2005. The
cost of electronic intercepts is as follows: Total
Cost: $25,514,664; Average Cost Per Arrest: $16,703;
Average Cost Per Conviction: $33,407; Average Cost
Per Order: $6,813. Of the total 283 wiretap orders
sought, 282 were granted by superior court judges.
Ninety-five thousand, one hundred and sixty nine
incriminating conversations were intercepted while
566,060 non-incriminating conversations were
intercepted.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: Yes
SUPPORT : (Verified 8/17/10)
Los Angeles District Attorney's Office (source)
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles County Sheriff
San Bernardino County Sheriff
OPPOSITION : (Verified 8/17/10)
American Liberties Union (no letter on file)
ARGUMENTS IN SUPPORT : According to the author's office,
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
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by e-mail, blackberry, instant messaging by phone and other
forms of contemporaneous two way electronic communication.
According to the author's office, 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
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.
This bill 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 50-75 major
narcotic division cases (usually involving large seizures
and multiple defendants) and approximately 25-40 homicide
cases are affected annually by California's wiretap
statute.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall, Bill
Berryhill, Tom Berryhill, Block, Blumenfield, Bradford,
Brownley, Buchanan, Caballero, Carter, Chesbro, Conway,
Cook, Coto, Davis, De La Torre, De Leon, DeVore, Eng,
Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Gaines,
Galgiani, Garrick, Gatto, Gilmore, Hagman, Hall, Harkey,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
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Jones, Knight, Lieu, Logue, Bonnie Lowenthal, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, John A. Perez
NO VOTE RECORDED: Blakeslee, Charles Calderon, Furutani,
Vacancy
RJG:do 8/18/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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