BILL NUMBER: AB 452	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 24, 2011
	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, or knowingly employing or engaging a 3rd party to
use, an electronic tracking device to determine the location or
movement of a person without the consent of that person.
   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   a legally  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 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 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
  no  . State-mandated local program:  yes
  no  .


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 or
knowingly employ or engage a third party to use an electronic
tracking device to determine the location or movement of a person
without the consent of that person.
   (b) Subdivision (a) shall not apply to any of the following:
   (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 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.   of a
legally incompetent person for the purposes of tracking that
incompetent person provided that electronic tracking has been
approved by a court. This exception shall not apply if there is a
court order in place prohibiting a conservator   of a
legally incompetent person from contacting, directly or indirectly,
harassing, following, surveilling, or stalking the incompetent
person. 
   (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.
   (c) As used in this section, "electronic tracking device" means
any device 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.
   (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. 
   (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.  
   (f) 
   (e)  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) 
    (f)  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) 
    (g)  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.