BILL ANALYSIS Ó
AB 452
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Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 452 (Ma) - As Amended: April 25, 2011
SUBJECT : Electronic Tracking Devices: Invasion of Privacy
KEY ISSUES :
1)Should the existing prohibition on electronically tracking the
movement or location of another person, without that person's
consent, be extended to prohibit the use of a third party to
track the movement or location of another person?
2)Should the parents or legal guardians of a minor child, or the
guardian or conservator of an incompetent adult, be exempted
from the prohibition against electronically tracking the
location or movements OF the minor or incompetent person?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
Existing law makes it unlawful for a person to electronically
track the location or movement of another person; this bill
would modify that law to also prohibit a person from employing
or engaging a third party to electronically track another
person. In addition to extending the prohibition in this
manner, this bill would also redefine "electronic tracking
device" and make other changes to take account of significant
changes in technology since the original anti-tracking
legislation was enacted in 1998. This measure would also create
a new exemption for parents, guardians, or conservators in order
to permit the use of new commercial products that are expressly
designed to permit parents and caretakers to track the
whereabouts of children and legally incompetent adults. The
exemption for parents and guardians was opposed by the American
Civil Liberties Union (ACLU) when this bill was heard in the
Assembly Public Safety Committee, on the grounds that this new
exemption will infringe upon the constitutional privacy rights
of minors; however, the ACLU had not submitted a letter of
opposition to this Committee at the time of this writing. While
the ACLU raises important constitutional concerns, the author
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and sponsor contend that existing statutory and case law have
long recognized the rights of parents to exert considerable
authority over the behavior of their children, and furthermore
that parents should be permitted to use commercial products
designed for monitoring purposes, so long as such use does not
harm the child. This bill passed out of the Assembly Public
Safety Committee on a 7-0 vote.
SUMMARY : Prohibits a person from employing or engaging a third
party to use an electronic tracking device to determine the
location or movement of another person without that person's
consent, subject to certain exceptions, and makes other changes
to update existing law. Specifically, this bill :
1)Extends the existing prohibition against using an electronic
tracking device to determine the location or movement of a
person without that person's consent to include knowingly
employing or engaging a third party to electronically track
the location or movement of another person without that
person's consent.
2)Provides that the prohibition against using, or employing or
engaging a third party to use, an electronic tracking device
to determine the location or movement of a person without that
person's consent shall not apply to any of the following:
a) The legal owner, lessor, or lessee of a vehicle who has
consented to the use of the electronic device with respect
to that vehicle.
b) 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.
c) The use of an electronic tracking device by a parent or
legal guardian or person having legal custody of a minor
for the 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.
d) The use of an electronic tracking device by a
conservator or guardian or an incompetent person for the
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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.
e) 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 to
support the primary purpose of the commercial service being
provided, so long as the provider has given the consumer a
specified notice. States that the commercial service
provider shall not sell, distribute, transfer, or release
any information to any third party, except as specified.
3)Defines "electronic tracking device" to mean 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.
4)Makes the violation of the provisions of this bill a
misdemeanor punishable by imprisonment in a county jail not to
exceed six months, or by a fine not to exceed $2,500, or by
both that fine and imprisonment. However, a violation of this
bill by a person who is prohibited from contacting, directly
or indirectly, harassing, surveilling, or stalking another
person or persons by a court order who tracks the person
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 $5,000, or by both that fine and
imprisonment.
5)Specifies a person shall not require, coerce, or compel any
other individual to consent to undergo the subcutaneous
implanting of an electronic tracking device, as provided.
6)Specifies that it is not a defense under this bill that the
electronic tracking device used by the person or entity failed
to function properly.
7)Finds and declares that the right to privacy is a fundamental
right and that the electronic tracking of a person's location
without that person's knowledge and consent violates that
person's reasonable expectation of privacy.
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EXISTING LAW :
1)Provides that no person or entity shall use an electronic
tracking device to determine the location or movement of a
person. Makes a violation of this provision a misdemeanor.
(Penal Code Section 637.7 (a) and (e).)
2)Provides that the above prohibition does not apply (a) 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 or (b) to the lawful use of an
electronic tracking device by a law enforcement agency.
(Penal Code Section 637.7 (b) and (c).)
3)Defines "electronic tracking device" to mean any device
attached to a vehicle or other moveable thing that reveals its
location or movement by the transmission of electronic
signals. (Penal Code Section 637.7 (d).)
4)Provides that violation of the above by a person, business,
firm, company, association, partnership, or corporation
licensed to practice specified professions or vocations under
the Business & Professions Code shall constitute grounds for
revocation of the license, as provided. (Penal Code Section
637.7 (f).)
5)Provides that all persons concerned in the commission of
crime, whether they directly commit the crime or aid, abet,
advise, or encourage its commission, are principals in the
crime so committed. (Penal Code Section 31.)
6)Provides that no person shall require, coerce, or compel any
other individual to undergo the subcutaneous implanting of an
identification device, as defined. Subjects any person who
violates this provision to civil penalties and civil actions.
Specifies, however, that nothing in this provision shall in
any way modify existing statutory and case law regarding the
rights of parents or guardians, the rights of children or
minors, or the rights of dependent adults. (Civil Code
Section 57.2 (a).)
7)Protects, as an inalienable right, the right of every person
to pursue and obtain privacy. (California Constitution,
Article I, Section 1.)
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COMMENTS : This bill extends an existing statute that makes in
unlawful for a person to electronically track the location or
movement of another person so that the restriction will also
apply to the use of a third party to electronically track
another person. As an example of why this provision of the bill
is needed, the Los Angeles City Attorney's Office (the bill's
sponsor) reports that it was recently unable to prosecute a
suspect who hired a third party to place a tracking device on
his ex-girlfriend's automobile, because the law does not clearly
apply to the employment of third parties to do the tracking.
The author and sponsor also point out that, since the original
law was enacted in 1998, electronic tracking devices have become
much more sophisticated and commercially viable. For example,
existing law defines "electronic tracking device" so as to
require the physical attachment of the device on a vehicle or
other moving object. This definition arguably does not embrace,
for example, the widespread of GPS in mobile phones that can be
tracked by software downloaded into a remote phone or personal
computer. According to the author, this bill will update
existing law to take account of these advances, including by
providing an updated definition of "electronic tracking device"
to include more recently developed, and the author contends,
more potentially dangerous, technologies.
New Exemptions Under the Bill : While the bill seeks to take
account of the ways in which new technology might be used for
more malicious purposes, it at the same time creates new
exemptions in order to account for the fact that some of these
new gadgets - such as cellular phones with GPS and Internet
capacity - are sold commercially, in large part, because of
their ability to track the movement and location of a user or
even multiple users. For example, caretakers of persons who
suffer from Alzheimer's or related diseases might use such
devices to protect those persons if they become lost. More
controversially, perhaps, AT&T's "Family Map" provides a service
that allows people to locate a family member's wireless phone on
a map from one's own mobile device or personal computer. The
company advertises the product as something that will provide
"peace of mind" to a parent by sending an instant update to the
parent's phone or computer when a child arrives home from school
each day. Most if not all of these services provide
password-protected access so that only a parent or guardian can
locate or monitor children. (See e.g.
http://shop2.sprint.com/services/gps/family_loacator.shtml or
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www.vzw.com/familylocator .) The author and sponsor believe that
the new technology, therefore, can be used for good or bad
purposes. As such, the bill creates an exemption for the use of
tracking devices by a parent or guardian to track the location
or movement of his or her minor child, or the use of such
devices by a guardian or conservator to track the movement or
location of a legally incompetent adult, unless there is a court
order prohibiting that parent, guardian, or conservator from
contacting, harassing, following, surveilling, or stalking the
minor or legally incompetent adult.
Should Parents and Legal Guardians Be Exempted from this Bill ?
As the Assembly Public Safety Committee analysis notes, the ACLU
claims that the exemptions for parents and guardians infringes
upon the privacy rights of minors. The California Constitution
recognizes an inalienable right to privacy that, unlike the U.S.
Constitution, protects the individual's privacy from intrusion
by both private and state actors. However, existing case law
and many statutes recognize the rights of parents and legal
guardians to limit the personal liberty of their minor children.
For example, SB 362 (Chapter 535, Statutes of 2007), a bill
that prohibited the subcutaneous implantation of identification
devices in a person without that person's knowledge and consent,
expressly stated that nothing in the law would be construed to
"modify existing statutory or case law regarding the rights of
parents or guardians, the rights of children or minors, or the
rights of dependent adults." (Civil Code Section 52.7 (g).) In
addition, the Committee notes, both existing law and this bill
recognize that is perfectly acceptable to electronically track
another person so long as one obtains that person's "consent."
In multiple areas - from contracting to accessing educational
records - the law not only presumes that minors lack legal
consent, but frequently allows a parent to consent on behalf of
his or her minor child. The author recognizes the tension
between parental rights and the potential for abuse by parents
and legal guardians, which is why, for example, the exemption
does not apply where there is a court order preventing the
parent or guardian from contacting, following, or surveilling
the minor.
ARGUMENTS IN SUPPORT : According to the author, "AB 452 brings
California up to date with new technology and prohibits stalkers
and batterers from abusing technology to locate and follow their
victims." The author notes that this problem is especially
prevalent in "relationships involving domestic violence,"
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claiming that "1 in 4 victims report being stalked through the
use of some form of technology (such as e-mail or instant
messaging). In fact, at least 10% of stalking victims are
monitored with global positioning systems (GPS)." The author
and sponsor argue that this bill will help to address these
troubling trends by updating the definition of "electronic
tracking devices" to clearly include new technologies, such as
mobile phones and GPS, and by closing the loophole that allows
wrong-doers to avoid prosecution by hiring third parties to
track their victims. At the same, the author argues that this
bill will protect individual privacy while at the same time
providing "exceptions for use of tracking devices by persons and
entities that use electronic tracking for lawful purposes
including law enforcement, commercial services, and parents."
Peace Over Violence, an organization that provides services to
victims of domestic violence, argues, based on its experience,
that "abusers often rely on clandestine tracking to stalk,
terrorize, and harm their victims. AB 452 brings the present
law up to date so that the type of tracking actually being used
is the type of tracking that can be prosecuted." In particular,
Peace Over Violence notes that existing law still requires that
the tracking device be attached to a vehicle or other movable
object, even though the now common GPS and related technologies
allow tracking without need of direct physical attachment.
REGISTERED SUPPORT / OPPOSITION :
Support
City Attorney, City of Los Angeles (sponsor)
Peace Officers Research Association of California (PORAC)
Peace Over Violence
Opposition
None on file (with this Committee)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334