BILL ANALYSIS Ó
AB 452
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Date of Hearing: April 5, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 452 (Ma) - As Introduced: February 15, 2011
SUMMARY : Prohibits the use, attempted use, or employment of 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. Specifically, this bill :
1)States that a person has consented to the use of an electronic
tracking device if he or she voluntarily uses a device that he
or she knows is being used to determine his or her location or
movement.
2)States that the prohibition against using, attempting to use,
or employing a third party to use or attempt to use an
electronic tracking device does not apply in the following
instances:
a) 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;
b) The lawful use of en electronic tracking device by a
federal, state or local law enforcement agency:
c) The use of an electronic tracking device by a parent or
legal guardian or person having legal custody of an minor
for purposes of tracing 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;
d) The use of an electronic tracking device by a
conservator or guardian of an incompetent person for
purposes of tracing that incompetent person, 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
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incompetent person; or,
e) 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.
3)Defines "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,
including but not limited to, a global positioning system or
other electronic tracking system.
4)States that violation of this section is a misdemeanor
punishable by imprisonment in county jail for up to six
months, a fine up to $2,500, or both.
5)States that 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 county jail for up
to one year, a fine up to $5,000, or both.
EXISTING LAW :
1)Prohibits the use of an electronic tracking device to
determine the location or movement of a person. This
prohibition does not apply to the registered owner, lessor, or
lessee of a vehicle who has consented to the use of an
electronic tracking device, or the lawful use of an electronic
tracking device by law enforcement. ÝPenal Code Section
637.7(a) to (c).]
2)Defines an "electronic tracking device" as any device attached
to a vehicle or other movable thing that reveals its location
or movement by the transmission of electronic signals. ÝPenal
Code Section 637.7(d).]
3)States that violation of this section is a misdemeanor.
ÝPenal Code Section 637.7(e).]
4)States that the violation of this section by a person,
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business, firm, company, association, partnership, or
corporation licensed, as specified, 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. ÝPenal Code Section 637.7(f).]
5)States that all persons concerned in the commission of a
crime, whether they directly commit the act constituting the
offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission, are
principals in any crime so committed. (Penal Code Section
31.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Technology
enables tremendous advances and at the same time creates
additional risks. One such risk is the ability of individuals
to electronically track others without their knowledge or
consent. Tiny inexpensive tracking devices can and are used
by batters, stalkers and other criminals to follow, stalk,
harass and ultimately harm their victims.
"AB 452 brings California up to date and prohibits stalkers and
batters from abusing technology to locate and follow their
victims. This bill protects a person's privacy and provides
exceptions for use of tracking devices by persons and entities
that use electronic tracking for lawful purposes, including
law enforcement, commercial services and parents."
2)Argument in Support : According to the City Attorney for the
City of Los Angeles (the sponsor of this bill), "Technological
advances have created a world that was inconceivable only a
few years ago. Prosecutors are now encountering problems
applying some of California's current Penal Code sections to
conduct that is presently endangering and harming our
community. AB 452 works to criminalize the abuse of
technology, which permitting those who choose to use it to
locate friends, family members and others, to lawfully do so."
3)Argument in Opposition : According to the American Civil
Liberties Union , "AB 452 description of the crime and
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exceptions do not work very well together. The consent
provisions swallow up the prohibitions. Finally, there is
very troubling language about tracking young people.
"The definition of 'electronic tracking device' would include
cell phones. (p. 3, line 36 - p. 4, line 2). However, AB 452
would exempt almost every cell phone user from protection if
the cell phone were being used to track that individual. The
bill provides that someone 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' (p.3, lines
9-12).
"There is also odd exception that would seem to swallow up the
definition: Sub. (d) (5) seems to allow commercial services
(including mobile phone companies to track movement and
location of customers 'for the purpose of providing the
commercial service.' Wouldn't many of these tracking devices
that are intended to be covered actually be commercial
services that allow the service provider to determine the
location or movement of a device for the purpose of providing
the commercial service? How else would they be on the market
and actually work to determine location or movement?
"Finally, we are very troubled that AB 452 would permit parents
to use an electronic tracking device on their children. We
believe that tracking children - though the use of electronic
devises - raises significant Constitutional privacy concerns
that would be best addressed in the Judiciary Committee."
REGISTERED SUPPORT / OPPOSITION :
Support
City Attorney, City of Los Angeles (Sponsor)
California District Attorneys Association
Opposition
American Civil Liberties Union
California Public Defenders Association
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
AB 452
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