BILL NUMBER: AB 929	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 15, 2015

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.  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.  The bill would  also  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
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. 
   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  pursuant to Section 638.52 or
638.53  .
   (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.  
   (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:  
   (1) Recovery of stolen or embezzled property.  
   (2) Property or things used as the means of committing a felony.
 
   (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.  
   (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.  
   (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.  

   (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.  
   (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.  
   (8) Evidence that does any of the following:  
   (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.  
   (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. 

   (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. 

   (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.
 
   (c) 
    (d)  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) 
    (e) 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) 
    (f)  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) 
    (g)  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  
court, or for compliance with Sections 1054.1 and 1054.7  .

   (g) 
    (h)  Upon the presentation of an order, entered under
subdivisions (b) or  (e)   (f)  , 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) 
    (i)  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) 
    (j)  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. 
   (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. 
  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.