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: May 23, 2014 Consultant: Jolie Onodera
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.
Background: State wiretap law was originally enacted in 1989
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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
Courts on electronic interceptions conducted during the
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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
prove a defendant's innocence and could ultimately result in an
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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.