BILL ANALYSIS Ó
AB 452
Page 1
Date of Hearing: April 26, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 452 (Ma) - As Amended: April 25, 2011
SUMMARY : Prohibits the use or employment of a third party 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 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 legal 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 use of an electronic tracking devise by a federal,
state, or local law enforcement agency or individual law
enforcement officer, acting in good faith, for a law
enforcement purpose;
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
contacting, directly or indirectly, 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 contacting, directly or indirectly, harassing,
following, surveilling, or stalking the incompetent person;
or,
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e) The use of an electronic tracking devise 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.
2)Defines "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.
3)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.
4)States that 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 county jail for up to one year, a fine up to
$5,000, or both.
5)Prohibits a person from requiring, coercing or compelling any
other person to undergo the subcutaneous implantation of an
electronic tracking device, as specified.
6)States that it is not a defense to this section that an
electronic tracking device used by the defendant failed to
function properly.
EXISTING LAW :
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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,
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
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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 , "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)
319-3744