AB 929, as introduced, Chau. Pen registers: authorized use.
Existing law authorizes the Attorney General or a district attorney to make a written application to a judge of a superior court for an order permitting the interception of wire communication and electronic communication, as defined. Existing law permits an application to be made informally and granted orally if an emergency situation exists, and other factors are present. Existing law conditions the granting of an oral approval on the filing of a written application by midnight of the second full court day after the oral approval is made. Existing law prohibits a communication interception from lasting for longer than 30 days. Existing law permits an extension of the original order, not to exceed 30 days, upon a showing that there is continued probable cause that the information sought is likely to be obtained under the extension.
This bill would prohibit a person, other than a provider of electronic or wire communication service for specified purposes, from installing or using a pen register or a trap and trace device, as defined. The bill would authorize a peace officer to make a written application to a magistrate for an order permitting the installation and use of a pen register or a trap and trace device. The bill would permit an application to be made informally and granted orally if an emergency situation exists, and other factors are present. The bill would condition the grant of an oral approval on the filing of a written application by midnight of the second full court day after the pen register or trap and trace device is installed. The bill would prohibit the installation and use of a pen register or trap and trace device for longer than 60 days. The bill would permit an extension of the original order, not to exceed 60 days, upon a showing that there is continued probable cause that the information sought is likely to be obtained under the extension.
The bill would make the prohibited installation or use of a pen register or a trap and trace device punishable by a fine not exceeding $2,500, or by imprisonment in the county jail not exceeding 1 year, or by imprisonment in state prison for offenders with specified prior convictions, or by both that fine and imprisonment. By creating a new crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 638.50 is added to the Penal Code, to
2read:
For purposes of this chapter, the following terms have
4the following meanings:
5(a) “Wire communication” and “electronic communication”
6have the meaning set forth in subdivision (a) of Section 629.51.
7(b) “Pen register” means a device or process that records or
8decodes dialing, routing, addressing, or signaling information
9transmitted by an instrument or facility from which a wire or
10electronic communication is transmitted, but not the contents of a
11communication. “Pen register” does not include a device or process
12used by a provider or customer of a wire or electronic
13communication service for billing, or recording as an incident to
14billing, for communications services provided by such provider,
15or a
device or process used by a provider or customer of a wire
16communication service for cost accounting or other similar
17purposes in the ordinary course of its business.
P3 1(c) “Trap and trace device” means a device or process that
2captures the incoming electronic or other impulses that identify
3the originating number or other dialing, routing, addressing, or
4signaling information reasonably likely to identify the source of
5a wire or electronic communication, but not the contents of a
6communication.
Section 638.51 is added to the Penal Code, to read:
(a) Except as provided in subdivision (b), a person
9may not install or use a pen register or a trap and trace device
10without first obtaining a court order.
11(b) A provider of electronic or wire communication service may
12use a pen register or a trap and trace device for any of the following
13purposes:
14(1) To operate, maintain, and test a wire or electronic
15communication service.
16(2) To protect the rights or property of the provider.
17(3) To protect users of the service from abuse of service or
18unlawful use of service.
19(4) To record the fact that a wire or electronic communication
20was initiated or completed to protect the provider, another provider
21furnishing service toward the completion of the wire
22communication, or a user of that service, from fraudulent, unlawful,
23or abusive use of service.
24(5) If the consent of the user of that service has been obtained.
25(c) A violation of this section is punishable by a fine not
26exceeding two thousand five hundred dollars ($2,500), or by
27imprisonment in the county jail not exceeding one year, or by
28imprisonment pursuant to subdivision (h) of Section 1170, or by
29both that fine and imprisonment.
30(d) A good faith reliance on an order issued pursuant to Section
31638.52, or an authorization made pursuant to Section 638.53, is a
32complete
defense to a civil or criminal action brought under this
33section or under this chapter.
Section 638.52 is added to the Penal Code, to read:
(a) A peace officer may make an application to a
36magistrate for an order or an extension of an order authorizing or
37approving the installation and use of a pen register or a trap and
38trace device. The application shall be in writing under oath or
39equivalent affirmation, and shall include the identity of the peace
40officer making the application and the identity of the law
P4 1enforcement agency conducting the investigation. The applicant
2shall certify that the information likely to be obtained is relevant
3to an ongoing criminal investigation and shall include a statement
4of the offense to which the information likely to be obtained by
5the pen register or trap and trace device relates.
6(b) If the magistrate finds that the information likely to be
7
obtained by the installation and use of a pen register or a trap and
8trace device is relevant to an ongoing criminal investigation, and
9finds that there is probable cause to believe that the pen register
10or trap and trace device will lead to obtaining evidence of a crime,
11contraband, fruits of crime, things criminally possessed, weapons,
12or other things by means of which a crime has been committed or
13reasonably appears about to be committed, or will lead to learning
14the location of a person who is unlawfully restrained or reasonably
15believed to be a witness in a criminal investigation or for whose
16arrest there is probable cause, the magistrate shall enter an ex parte
17order authorizing the installation and use of a pen register or a trap
18and trace device.
19(c) An order issued pursuant to subdivision (b) shall specify all
20of the following:
21(1) The identity, if known, of the person to
whom is leased or
22in whose name is listed the telephone line to which the pen register
23or trap and trace device is to be attached.
24(2) The identity, if known, of the person who is the subject of
25the criminal investigation.
26(3) The number and, if known, physical location of the telephone
27line to which the pen register or trap and trace device is to be
28attached and, in the case of a trap and trace device, the geographic
29limits of the trap and trace order.
30(4) A statement of the offense to which the information likely
31to be obtained by the pen register or trap and trace device relates.
32(5) The order shall direct, if the applicant has requested, the
33furnishing of information, facilities, and technical assistance
34necessary to accomplish the installation of
the pen register or trap
35and trace device.
36(d) An order issued under this section shall authorize the
37installation and use of a pen register or a trap and trace device for
38a period not to exceed 60 days.
39(e) Extensions of the original order may be granted upon a new
40application for an order under subdivisions (a) and (b) if the officer
P5 1shows that there is a continued probable cause that the information
2or items sought under this subdivision are likely to be obtained
3under the extension. The period of an extension shall not exceed
460 days.
5(f) An order or extension order authorizing or approving the
6installation and use of a pen register or a trap and trace device shall
7direct that the order be sealed until otherwise ordered by the
8magistrate who issued the order, or a judge of the superior court,
9and that the person
owning or leasing the line to which the pen
10register or trap and trace device is attached, or who has been
11ordered by the court to provide assistance to the applicant, not
12disclose the existence of the pen register or trap and trace device
13or the existence of the investigation to the listed subscriber or to
14any other person, unless or until otherwise ordered by the
15magistrate or a judge of the superior court.
16(g) Upon the presentation of an order, entered under subdivisions
17(b) or (e), by a peace officer authorized to install and use a pen
18register, a provider of wire or electronic communication service,
19landlord, custodian, or other person shall immediately provide the
20peace officer all information, facilities, and technical assistance
21necessary to accomplish the installation of the pen register
22unobtrusively and with a minimum of interference with the services
23provided to the party with respect to whom the installation and
24use is to take
place, if the assistance is directed by the order.
25(h) Upon the request of a peace officer authorized to receive
26the results of a trap and trace device, a provider of a wire or
27electronic communication service, landlord, custodian, or other
28person shall immediately install the device on the appropriate line
29and provide the peace officer all information, facilities, and
30technical assistance, including installation and operation of the
31device unobtrusively and with a minimum of interference with the
32services provided to the party with respect to whom the installation
33and use is to take place, if the installation and assistance is directed
34by the order.
35(i) Unless otherwise ordered by the magistrate, the results of
36the pen register or trap and trace device shall be provided to the
37peace officer at reasonable intervals during regular business hours
38for the duration of the
order.
Section 638.53 is added to the Penal Code, to read:
(a) Except as otherwise provided in this chapter, upon
2an oral application by a peace officer, a magistrate may grant oral
3approval for the installation and use of a pen register or a trap and
4trace device, without an order, if he or she determines all of the
5following:
6(1) There are grounds upon which an order could be issued
7under Section 638.52.
8(2) There is probable cause to believe that an emergency
9situation exists with respect to the investigation of a crime.
10(3) There is probable cause to believe that a substantial danger
11to life or limb exists justifying the authorization for immediate
12installation and use of
a pen register or a trap and trace device
13before an order authorizing the installation and use can, with due
14diligence, be submitted and acted upon.
15(b) (1) By midnight of the second full court day after the pen
16register or trap and trace device is installed, a written application
17pursuant to Section 638.52 shall be submitted by the peace officer
18who made the oral application to the magistrate who orally
19approved the installation and use of a pen register or trap and trace
20device. If an order is issued pursuant to Section 638.52, the order
21shall also recite the time of the oral approval under subdivision
22(a) and shall be retroactive to the time of the original oral approval.
23(2) In the absence of an authorizing order pursuant to paragraph
24(1), the use shall immediately terminate when the information
25sought is obtained, when the application for the order is
denied,
26or by midnight of the second full court day after the pen register
27or trap and trace device is installed, whichever is earlier.
28(c) A provider of a wire or electronic communication service,
29landlord, custodian, or other person who provides facilities or
30technical assistance pursuant to this section shall be reasonably
31compensated by the requesting peace officer’s law enforcement
32agency for the reasonable expenses incurred in providing the
33facilities and assistance.
No reimbursement is required by this act pursuant to
35Section 6 of Article XIII B of the California Constitution because
36the only costs that may be incurred by a local agency or school
37district will be incurred because this act creates a new crime or
38infraction, eliminates a crime or infraction, or changes the penalty
39for a crime or infraction, within the meaning of Section 17556 of
40the Government Code, or changes the definition of a crime within
P7 1the meaning of Section 6 of Article XIII B of the California
2Constitution.
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