BILL NUMBER: AB 452 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2011
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 amended, 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 use of an electronic
tracking device by a commercial service provider , as provided
, only if the provider has given a specified notice regarding
the use of the device. The bill would prohibit the provider from
selling, distributing, transferring, or releasing any information
gathered or collected to any 3rd party or the person
utilizing the service, except as specified .
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
attached to, placed on, or inserted into, a vehicle,
wireless telephone, or other movable thing that reveals its location
or movement by the transmission of electronic or radio signals,
including, but not limited to, a global positioning system .
The bill would also prohibit a person from requiring, coercing, or
compelling any other individual to consent to undergo the
subcutaneous implanting of an electronic tracking device, as
specified.
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
contacting, directly or indirectly, 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) 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)
(b) Subdivision (a) shall not apply to any of the
following:
(1)The registered
(1) The legal 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.
(2) The use of an electronic tracking device by a federal, state,
or local law enforcement agency or individual law enforcement
officer, acting in good faith, for a law enforcement purpose.
(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 contacting, directly or indirectly,
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 contacting, directly or indirectly, 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.
(5) The use of an electronic tracking device by a commercial
service provider, such as a wireless telephone service provider, when
the electronic tracking device is used in support of the primary
purpose of the commercial service being provided. This paragraph
shall apply only after the commercial service provider has given
notice of the use of the electronic tracking device to the person
utilizing the service. The notice shall describe the process by which
the commercial service provider may electronically track the person
and disclose for what purposes the provider is using electronic
tracking. The commercial service provider shall not sell, distribute,
transfer, or release any information gathered or collected regarding
a person from the electronic tracking device to any third party or
the person utilizing the service without a court order or the written
consent of the actual person being tracked.
(d)
(c) As used in this section, "electronic tracking
device" means any device 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. attached
to, placed on, or inserted into a vehicle, wire less
telephone, or other movable thing that reveals its location or
movement by the transmission of electronic or radio signals,
including, but not limited to, a global positioning system.
(e)
(d) 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)
(e) Notwithstanding subdivision (e), a violation of
this section by a person who is prohibited from contacting,
directly or indirectly, 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.
(g)
(f) 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.
(g) Notwithstanding subdivision (a), a person shall not require,
coerce, or compel any other individual to consent to undergo the
subcutaneous implanting of an electronic tracking device as those
terms are defined in subdivision (h) of Section 52.7 of the Civil
Code.
(h) It is not a defense to this section that the electronic
tracking device used by the person or entity failed to function
properly.
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.