BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 955 (Mitchell) - Interception of electronic communications.
          
          Amended: As Introduced          Policy Vote: Public Safety 7-0
          Urgency: No                     Mandate: No
          Hearing Date: April 28, 2014                            
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 955 would add human trafficking to the list of  
          offenses for which interception of electronic communications may  
          be ordered, as specified. This bill would also extend the sunset  
          on the provisions governing the interception of electronic  
          communications from January 1, 2015, to January 1, 2020.

          Fiscal Impact: 
           Increased and ongoing significant state costs (General Fund)  
            potentially in the millions of dollars, to the extent  
            expanding and continuing the current authorization for  
            electronic interceptions leads to additional state prison  
            commitments. 
           Major ongoing non-reimbursable local law enforcement costs as  
            a result of continuing electronic interception authorization,  
            in the range of $31 million, according to the self-reported  
            personnel and resources costs from the counties reported to  
            the Department of Justice (DOJ) for 2012. (Costs related to  
            extending electronic interception authorization are likely  
            offset to a degree by related savings as a result of more  
            efficient law enforcement practices.)  
           Non-reimbursable local law enforcement costs, offset to a  
            degree by fine revenue, for violations of the electronic  
            interception statutes, which are punishable by a fine not  
            exceeding $2,500, imprisonment in the county jail for up to  
            one year, or by imprisonment pursuant to subdivision (h) of  
            Section 1170 of the Penal Code, or by both the fine and  
            imprisonment.
           Potential ongoing state law enforcement costs to DOJ for its  
            electronic interception efforts.
           Minor annual costs to DOJ, likely less than $50,000 (General  
            Fund) for the detailed annual report. 









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          Background:  State wiretap law was originally enacted in 1989  
          and granted law enforcement officers the right to use  
          wiretapping while investigating specific types of crimes. SB  
          1428 (Pavley) Chapter 707/2010 expanded the use of wiretapping  
          to include the interception of modern types of electronic  
          communications. 

          The number of electronic interception orders in California  
          averaged approximately 700 in both 2011 and 2012. According to  
          the DOJ 2011 California Electronic Interceptions Report, 697  
          interception orders were authorized in 21 counties, leading to  
          697 arrests and 193 convictions. The DOJ 2012 California  
          Electronic Interceptions Report indicates 707 interception  
          orders were authorized in 16 counties, leading to 961 arrests.  
          The majority of these arrests are currently pending prosecution,  
          with 58 convictions reported to date. The crimes for which  
          arrests were made vary, but charges were largely narcotics- (51  
          percent) or gang- (20 percent) related.

          Electronic interceptions are used as an investigative tool, one  
          of many at law enforcement's disposal. As one example of the  
          significant impact of electronic intercepts and their importance  
          as a tool for law enforcement agencies to use in investigating  
          crimes involving narcotics transactions, criminal street gangs,  
          and violence, the DOJ 2012 report cites the seizure of over $1.3  
          million, 799 pounds of methamphetamine, and 65 kilograms of  
          cocaine in Imperial County due to the assistance of 15  
          electronic intercept orders.

          Current law authorizes the Attorney General or the district  
          attorney to apply to the Superior Court for an order authorizing  
          interception of a wire or electronic communication under  
          specified circumstances. The crimes for which an electronic  
          interception order may be sought include murder, solicitation to  
          commit murder, bombing, use or threat to use weapons of mass  
          destruction, criminal gang activity, and importation, possession  
          for sale, transportation, manufacture or sale of heroin,  
          cocaine, PCP, or methamphetamine. Written reports must be  
          submitted at the discretion of the court, but at least every 10  
          days, to the judge who issues the order. 

          Current law requires the Attorney General to prepare and submit  
          a detailed annual report to the Legislature, the Judicial  
          Council, and the Director of the Administrative Office of the  








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          Courts on electronic interceptions conducted during the  
          preceding year. Information for this report is to be provided to  
          the Attorney General by any prosecutorial agency seeking an  
          electronic interception order.

          Proposed Law: This bill would add human trafficking to the list  
          of offenses for which interception of electronic communications  
          may be ordered, as specified. Additionally, this bill would  
          extend the sunset on provisions governing electronic  
          interceptions from January 1, 2015, to January 1, 2020. 

          Related Legislation: SB 35 (Pavley) 2014 extends the provisions  
          authorizing the use of electronic interceptions from January 1,  
          2015, to January 1, 2020. This bill is pending hearing in the  
          Assembly Committee on Public Safety.
          
          Prior Legislation: AB 569 (Portantino) Chapter 391/2007 extended  
          the provisions authorizing the use of wiretaps by law  
          enforcement to January 1, 2012.
          
          SB 1428 (Pavley) Chapter 707/2010 expanded the scope of  
          wiretapping provisions to include the interception of modern  
          types of electronic communications. This bill also proposed to  
          extend the sunset on wiretap provisions to January 1, 2014,  
          however, the provision was amended out of the chaptered version  
          of the bill.
          
          SB 61 (Pavley) Chapter 663/2011 extended the sunset on wiretap  
          provisions to January 1, 2015.

          Staff Comments: It is unknown how many additional electronic  
          interception orders would be authorized under the offense of  
          human trafficking, how many additional orders would be  
          authorized under the extension of the sunset to January 1, 2020,  
          or how many arrests, convictions, and prison commitments would  
          result directly from their use. 

          In order to obtain intercept authority, law enforcement must  
          already be investigating specific criminal activity, with  
          electronic interceptions to be used after all other normal  
          investigative procedures have been exhausted. It is unclear how  
          many investigations could have led to successful convictions  
          even in the absence of electronic interceptions. Moreover,  
          electronic interception evidence makes it more difficult to  








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          prove a defendant's innocence and could ultimately result in an  
          indeterminable level of reduced trial and incarceration costs to  
          the extent that a defendant is more likely to plea bargain due  
          to the existence of electronic interception evidence of his or  
          her guilt. Nonetheless, if even a few additional defendants are  
          sentenced to state prison directly attributable to an electronic  
          interception, the annual costs would exceed the threshold for  
          referral to the Suspense File.


          The U.S. Supreme Court has ordered the CDCR to reduce prison  
          crowding to 137.5 percent of the prison system's design capacity  
          by February 28, 2016. Although public safety realignment has  
          achieved significant reductions in the prison population, and  
          the 2014-15 Governor's Budget projects meeting the population  
          cap in the near-term, the analysis by the Legislative Analyst's  
          Office suggests that CDCR's long-term prison caseload will  
          likely exceed this cap. Because California's institutions  
          already exceed the population limit, any near-term and future  
          increases to the state's prison population would require the  
          state to pursue one of several options including contracting-out  
          for additional bed space or releasing current inmates early onto  
          parole.