BILL NUMBER: AB 929	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Chau

                        FEBRUARY 26, 2015

   An act to add Sections 638.50, 638.51, 638.52, and 638.53 to the
Penal Code, relating to privacy.


	LEGISLATIVE COUNSEL'S DIGEST


   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 1.  Section 638.50 is added to the Penal Code, to read:
   638.50.  For purposes of this chapter, the following terms have
the following meanings:
   (a) "Wire communication" and "electronic communication" have the
meaning set forth in subdivision (a) of Section 629.51.
   (b) "Pen register" means a device or process that records or
decodes dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a wire or
electronic communication is transmitted, but not the contents of a
communication. "Pen register" does not include a device or process
used by a provider or customer of a wire or electronic communication
service for billing, or recording as an incident to billing, for
communications services provided by such provider, or a device or
process used by a provider or customer of a wire communication
service for cost accounting or other similar purposes in the ordinary
course of its business.
   (c) "Trap and trace device" means a device or process that
captures the incoming electronic or other impulses that identify the
originating number or other dialing, routing, addressing, or
signaling information reasonably likely to identify the source of a
wire or electronic communication, but not the contents of a
communication.
  SEC. 2.  Section 638.51 is added to the Penal Code, to read:
   638.51.  (a) Except as provided in subdivision (b), a person may
not install or use a pen register or a trap and trace device without
first obtaining a court order.
   (b) A provider of electronic or wire communication service may use
a pen register or a trap and trace device for any of the following
purposes:
   (1) To operate, maintain, and test a wire or electronic
communication service.
   (2) To protect the rights or property of the provider.
   (3) To protect users of the service from abuse of service or
unlawful use of service.
   (4) To record the fact that a wire or electronic communication was
initiated or completed to protect the provider, another provider
furnishing service toward the completion of the wire communication,
or a user of that service, from fraudulent, unlawful, or abusive use
of service.
   (5) If the consent of the user of that service has been obtained.
   (c) A violation of this section is punishable by a fine not
exceeding two thousand five hundred dollars ($2,500), or by
imprisonment in the county jail not exceeding one year, or by
imprisonment pursuant to subdivision (h) of Section 1170, or by both
that fine and imprisonment.
   (d) A good faith reliance on an order issued pursuant to Section
638.52, or an authorization made pursuant to Section 638.53, is a
complete defense to a civil or criminal action brought under this
section or under this chapter.
  SEC. 3.  Section 638.52 is added to the Penal Code, to read:
   638.52.  (a) A peace officer may make an application to a
magistrate for an order or an extension of an order authorizing or
approving the installation and use of a pen register or a trap and
trace device. The application shall be in writing under oath or
equivalent affirmation, and shall include the identity of the peace
officer making the application and the identity of the law
enforcement agency conducting the investigation. The applicant shall
certify that the information likely to be obtained is relevant to an
ongoing criminal investigation and shall include a statement of the
offense to which the information likely to be obtained by the pen
register or trap and trace device relates.
   (b) If the magistrate finds that the information likely to be
obtained by the installation and use of a pen register or a trap and
trace device is relevant to an ongoing criminal investigation, and
finds that there is probable cause to believe that the pen register
or trap and trace device will lead to obtaining evidence of a crime,
contraband, fruits of crime, things criminally possessed, weapons, or
other things by means of which a crime has been committed or
reasonably appears about to be committed, or will lead to learning
the location of a person who is unlawfully restrained or reasonably
believed to be a witness in a criminal investigation or for whose
arrest there is probable cause, the magistrate shall enter an ex
parte order authorizing the installation and use of a pen register or
a trap and trace device.
   (c) An order issued pursuant to subdivision (b) shall specify all
of the following:
   (1) The identity, if known, of the person to whom is leased or in
whose name is listed the telephone line to which the pen register or
trap and trace device is to be attached.
   (2) The identity, if known, of the person who is the subject of
the criminal investigation.
   (3) The number and, if known, physical location of the telephone
line to which the pen register or trap and trace device is to be
attached and, in the case of a trap and trace device, the geographic
limits of the trap and trace order.
   (4) A statement of the offense to which the information likely to
be obtained by the pen register or trap and trace device relates.
   (5) The order shall direct, if the applicant has requested, the
furnishing of information, facilities, and technical assistance
necessary to accomplish the installation of the pen register or trap
and trace device.
   (d) An order issued under this section shall authorize the
installation and use of a pen register or a trap and trace device for
a period not to exceed 60 days.
   (e) Extensions of the original order may be granted upon a new
application for an order under subdivisions (a) and (b) if the
officer shows that there is a continued probable cause that the
information or items sought under this subdivision are likely to be
obtained under the extension. The period of an extension shall not
exceed 60 days.
   (f) An order or extension order authorizing or approving the
installation and use of a pen register or a trap and trace device
shall direct that the order be sealed until otherwise ordered by the
magistrate who issued the order, or a judge of the superior court,
and that the person owning or leasing the line to which the pen
register or trap and trace device is attached, or who has been
ordered by the court to provide assistance to the applicant, not
disclose the existence of the pen register or trap and trace device
or the existence of the investigation to the listed subscriber or to
any other person, unless or until otherwise ordered by the magistrate
or a judge of the superior court.
   (g) Upon the presentation of an order, entered under subdivisions
(b) or (e), by a peace officer authorized to install and use a pen
register, a provider of wire or electronic communication service,
landlord, custodian, or other person shall immediately provide the
peace officer all information, facilities, and technical assistance
necessary to accomplish the installation of the pen register
unobtrusively and with a minimum of interference with the services
provided to the party with respect to whom the installation and use
is to take place, if the assistance is directed by the order.
   (h) Upon the request of a peace officer authorized to receive the
results of a trap and trace device, a provider of a wire or
electronic communication service, landlord, custodian, or other
person shall immediately install the device on the appropriate line
and provide the peace officer all information, facilities, and
technical assistance, including installation and operation of the
device unobtrusively and with a minimum of interference with the
services provided to the party with respect to whom the installation
and use is to take place, if the installation and assistance is
directed by the order.
   (i) Unless otherwise ordered by the magistrate, the results of the
pen register or trap and trace device shall be provided to the peace
officer at reasonable intervals during regular business hours for
the duration of the order.
  SEC. 4.  Section 638.53 is added to the Penal Code, to read:
   638.53.  (a) Except as otherwise provided in this chapter, upon an
oral application by a peace officer, a magistrate may grant oral
approval for the installation and use of a pen register or a trap and
trace device, without an order, if he or she determines all of the
following:
   (1) There are grounds upon which an order could be issued under
Section 638.52.
   (2) There is probable cause to believe that an emergency situation
exists with respect to the investigation of a crime.
   (3) There is probable cause to believe that a substantial danger
to life or limb exists justifying the authorization for immediate
installation and use of a pen register or a trap and trace device
before an order authorizing the installation and use can, with due
diligence, be submitted and acted upon.
   (b) (1) By midnight of the second full court day after the pen
register or trap and trace device is installed, a written application
pursuant to Section 638.52 shall be submitted by the peace officer
who made the oral application to the magistrate who orally approved
the installation and use of a pen register or trap and trace device.
If an order is issued pursuant to Section 638.52, the order shall
also recite the time of the oral approval under subdivision (a) and
shall be retroactive to the time of the original oral approval.
   (2) In the absence of an authorizing order pursuant to paragraph
(1), the use shall immediately terminate when the information sought
is obtained, when the application for the order is denied, or by
midnight of the second full court day after the pen register or trap
and trace device is installed, whichever is earlier.
   (c) A provider of a wire or electronic communication service,
landlord, custodian, or other person who provides facilities or
technical assistance pursuant to this section shall be reasonably
compensated by the requesting peace officer's law enforcement agency
for the reasonable expenses incurred in providing the facilities and
assistance.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.