Amended in Assembly April 15, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 929

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 amended, 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. begin insert The bill would require the magistrate to enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device only in specified circumstances and would permit the magistrate to question the peace officer pertaining to the need for the information. end insert The bill would begin insert also end insert 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. begin insert The bill would clarify that any location information obtained by a pen register or a track and trace device is limited to the information that can be determined from the telephone number. end insert

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 begin insert pursuant to Section 638.52
or 638.53 end insert .

(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.

begin delete

(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.

end delete begin insert

(b) The magistrate shall enter an ex parte order authorizing the
installation and use of a pen register or a trap and trace device if
he or she 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 investigation and that there is probable
cause to believe that the pen register or trap and trace device will
lead to any of the following:

end insert begin insert

(1) Recovery of stolen or embezzled property.

end insert begin insert

(2) Property or things used as the means of committing a felony.

end insert begin insert

(3) Property or things in the possession of a person with the
intent to use them as a means of committing a public offense, or
in the possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing them from
being discovered.

end insert begin insert

(4) Evidence that tends to show a felony has been committed,
or tends to show that a particular person has committed or is
committing a felony.

end insert begin insert

(5) Evidence that tends to show that sexual exploitation of a
child, in violation of Section 311.3, or possession of matter
depicting sexual conduct of a person under 18 years of age, in
violation of Section 311.11, has occurred or is occurring.

end insert begin insert

(6) 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.

end insert begin insert

(7) Evidence that tends to show a violation of Section 3700.5
of the Labor Code, or tends to show that a particular person has
violated Section 3700.5 of the Labor Code.

end insert begin insert

(8) Evidence that does any of the following:

end insert begin insert

(A) Tends to show that a felony, a misdemeanor violation of the
Fish and Game Code, or a misdemeanor violation of the Public
Resources Code, has been committed or is being committed.

end insert begin insert

(B) Tends to show that a particular person has committed or is
committing a felony, a misdemeanor violation of the Fish and
Game Code, or a misdemeanor violation of the Public Resources
Code.

end insert begin insert

(C) Will assist in locating an individual who has committed or
is committing a felony, a misdemeanor violation of the Fish and
Game Code, or a misdemeanor violation of the Public Resources
Code.

end insert begin insert

(c) Information acquired solely pursuant to the authority for a
pen register or a trap and trace device shall not include any
information that may disclose the physical location of the
subscriber, except to the extent that the location may be determined
from the telephone number. Upon the request of the person seeking
the pen register or trap and trace device, the magistrate may seal
portions of the application pursuant to People v. Hobbs (1994) 7
Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence
Code.

end insert begin delete

(c)

end delete

begin insert (d) end insert  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.

begin delete

(d)

end delete

begin insert (e) end insert  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.

begin delete

(e)

end delete

begin insert (f) end insert  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.

begin delete

(f)

end delete

begin insert (g) end insert  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 begin delete court end delete begin insert court, or for compliance
with Sections 1054.1 and 1054.7 end insert .

begin delete

(g)

end delete

begin insert (h) end insert  Upon the presentation of an order, entered under subdivisions
(b) or begin delete (e) end delete begin insert (f) end insert , 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.

begin delete

(h)

end delete

begin insert (i) end insert  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.

begin delete

(i)

end delete

begin insert (j) end insert  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.

begin insert

(k) The magistrate, before issuing the order pursuant to
subdivision (b), may examine on oath the person seeking the pen
register or the trap and trace device, and any witnesses the person
may produce, and shall take his or her affidavit or their affidavits
in writing, and cause the affidavit or affidavits to be subscribed
by the parties making them.

end insert

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.