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. SB 955 (Mitchell) Page 1 Background: State wiretap law was originally enacted in 1989 and granted law enforcement officers the right to use wiretapping while investigating specific types of crimes.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 SB 955 (Mitchell) Page 2 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 SB 955 (Mitchell) Page 3 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.