BILL NUMBER: AB 452 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Ma
FEBRUARY 15, 2011
An act to amend Section 637.7 of the Penal Code, relating to
privacy.
LEGISLATIVE COUNSEL'S DIGEST
AB 452, as introduced, Ma. Electronic tracking devices: invasion
of privacy.
Existing law prohibits a person or entity from using an electronic
tracking device to determine the location or movement of a person.
This prohibition does not apply when the owner of a vehicle has
consented to the use of the electronic tracking device with respect
to the vehicle, or to a law enforcement agency.
This bill would recast this provision to prohibit a person or
entity from using, attempting to use, or knowingly employing or
engaging a 3rd party to use or attempt to use, an electronic tracking
device to determine the location or movement of a person without the
consent of that person. This bill would provide that a person who
voluntarily uses a device knowing that it is being used to determine
his or her location or movement is deemed to have consented to the
use of the device.
This bill would additionally provide that this prohibition does
not apply to the parent or legal guardian of a minor child or
conservator of an incompetent person for purposes of tracking that
minor or incompetent person, except as specified. The bill would also
provide that this prohibition does not apply to the provision of
commercial services, as provided.
Existing law defines an electronic tracking device as any device
attached to a vehicle or other moveable thing that reveals its
location or movement by the transmission of electronic signals.
This bill would instead define an electronic tracking device as
any device that permits another person or entity to remotely
determine or track the position or movement of a person or object.
Existing law provides that a violation of these provisions is a
misdemeanor, punishable by imprisonment in a county jail for not more
than 6 months, by a fine not to exceed $1,000, or both that fine and
imprisonment.
This bill would provide that a violation of these provisions is a
misdemeanor, punishable by imprisonment in a county jail for not more
than 6 months, by a fine not to exceed $2,500, or by both that fine
and imprisonment. This bill would provide that a violation of these
provisions by a person who is prohibited by a court order from
harassing, following, surveilling, or stalking a person protected by
that order is punishable by imprisonment in a county jail for not
more than one year, by a fine not to exceed $5,000, or by both that
fine and imprisonment.
By increasing the punishment for a crime, and by creating a new
crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that the right to
privacy is fundamental to a free and civilized society and that the
increasing use of electronic surveillance devices is eroding personal
liberty. The Legislature declares that the electronic tracking of a
person's location without that person's knowledge and consent
violates that person's reasonable expectation of privacy.
SEC. 2. Section 637.7 of the Penal Code is amended to read:
637.7. (a) No person or entity in this state shall use ,
attempt to use, or knowingly employ or engage a third party to use or
attempt to use, an electronic tracking device to determine the
location or movement of a person without the consent of that
person .
(b) This section shall not apply when the registered owner,
lessor, or lessee of a vehicle has consented to the use of the
electronic tracking device with respect to that vehicle.
(c) This section shall not apply to the lawful use of an
electronic tracking device by a law enforcement agency.
(b) A person is deemed to have consented to the use of an
electronic tracking device when he or she voluntarily uses a device
that he or she knows is being used to determine his or her location
or movement.
(c) Subdivision (a) shall not apply to any of the following:
(1)The registered owner, lessor, or lessee of a vehicle who has
consented to the use of the electronic tracking device with respect
to that vehicle.
(2) The lawful use of an electronic tracking device by a federal,
state, or local law enforcement agency.
(3) The use of an electronic tracking device by a parent or legal
guardian or person having legal custody of a minor for purposes of
tracking that minor, unless there is a court order in place
prohibiting the parent, legal guardian, or other person having legal
custody of the minor from harassing, following, surveilling, or
stalking the minor.
(4) The use of an electronic tracking device by a conservator or
guardian of an incompetent person for the purposes of tracking that
incompetent person, unless there is a court order in place
prohibiting the conservator or guardian of the incompetent person
from harassing, following, surveilling, or stalking the incompetent
person.
(5) A commercial service, such as mobile telephone service or
vehicle safety or security service, which allows the service provider
to determine the location or movement of a device which is provided
to the customer of the commercial service and for the purpose of
providing the commercial service.
(d) As used in this section, "electronic tracking device" means
any device attached to a vehicle or other movable thing that
reveals its location or movement by the transmission of electronic
signals that permits another person or entity to
remotely determine or track the position or movement of a person or
object, including, but not limited to, a Global Positioning System or
other electronic tracking system .
(e) A violation of this section is a misdemeanor punishable
by imprisonment in a county jail not to exceed six months, or by a
fine not to exceed two thousand five hundred dollars ($2,500), or by
both that fine and imprisonment .
(f) Notwithstanding subdivision (e), a violation of this section
by a person who is prohibited from harassing, following, surveilling,
or stalking another person or persons by a court order who tracks
the person or persons protected by that order is guilty of a
misdemeanor, punishable by imprisonment in a county jail not to
exceed one year, or by a fine not to exceed five thousand dollars
($5,000), or by both that fine and imprisonment.
(f)
(g) A violation of this section by a person, business,
firm, company, association, partnership, or corporation licensed
under Division 3 (commencing with Section 5000) of the Business and
Professions Code shall constitute grounds for revocation of the
license issued to that person, business, firm, company, association,
partnership, or corporation, pursuant to the provisions that provide
for the revocation of the license as set forth in Division 3
(commencing with Section 5000) of the Business and Professions Code.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.