BILL ANALYSIS Ó
AB 929
Page A
Date of Hearing: April 7, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
929 (Chau) - As Introduced February 26, 2015
As Proposed to be Amended in Committee
SUMMARY: Authorizes state and local law enforcement to use pen
register and trap and trace devices under state law, and permits
the issuance of emergency pen registers and trap and trace
devices. Specifically, this bill:
1)Defines "pen register" as 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.
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2)Defines "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.
3)Specifies the offenses for which an order for installation of
a pen register of a trap and trace device may be granted, as
specified here for:
a) Stolen or embezzled property;
b) Property or things used as the means of committing a
felony;
c) Property or things in the possession of any 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;
d) Evidence that tends to show a felony has been committed,
or tends to show that a particular person has committed a
felony;
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e) 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;
f) 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;
g) 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; and
h) Evidence that tends to show that either 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, tends to show that a
particular person has committed a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code, or is committing a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
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.
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4)Provides, except as specified, a person may not install or use
a pen register or a trap and trace device without first
obtaining a court order.
a) Permits a provider of electronic or wire communication
service to use a pen register or a trap and trace device
for any of the following purposes:
i) To operate, maintain, and test a wire or electronic
communication service;
ii) To protect the rights or property of the provider;
iii) To protect users of the service from abuse of
service or unlawful use of service;
iv) 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; and
v) If the consent of the user of that service has been
obtained.
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b) Provides that 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 for 16 months, two
or three years, or by both that fine and imprisonment; and
c) Provides that a good faith reliance on specified orders
is a complete defense to a civil or criminal action brought
under this section or under this chapter.
5)Specifies that information acquired solely pursuant to the
authority for a pen register or 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.
6)Provides that the magistrate, before issuing the order, may
examine on oath the person seeking the warrant 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.
7)Specifies that 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
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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.
8)Provides that 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.
9)Provides that an order issued by a magistrate shall specify
all of the following:
a) 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;
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b) The identity, if known, of the person who is the subject
of the criminal investigation;
c) 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;
d) A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates;
e) 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; and
f) 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.
10)Provides that extensions of the original order may be granted
upon a new application for an order 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.
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11)Provides that 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.
12)States that upon the presentation of an order issued by a
magistrate for installation of a pen register or trap and
trace device, 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.
13)Provides 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
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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.
14)States that 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.
15)Provides that except as otherwise provided, 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:
a) There are grounds upon which an order could be issued
under specified normal application for a pen register or
trap and trace device.
b) There is probable cause to believe that an emergency
situation exists with respect to the investigation of a
crime.
c) 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
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and acted upon.
16)Provides that by midnight of the second full court day after
the pen register or trap and trace device is installed by oral
application, a written application pursuant to Penal Code
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 and shall be retroactive to the time of the original
oral approval.
17)Specifies that in the absence of an authorizing order, 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.
18)Provides that 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.
EXISTING FEDERAL LAW:
1)Provides that the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants
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shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched and the persons or things to be seized. (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13.)
2)Provides, except as provided, no person may install or use a
pen register or a trap and trace device without first
obtaining a court order under section 3123 of this title [18
USCS § 3123] or under the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.). (18 USCS § 3121.)
a) The prohibition does not apply with respect to the use
of a pen register or a trap and trace device by a provider
of electronic or wire communication service relating to the
operation, maintenance, and testing of a wire or electronic
communication service or to the protection of the rights or
property of such provider, or to the protection of users of
that service from abuse of service or unlawful use of
service; or to record the fact that a wire or electronic
communication was initiated or completed in order to
protect such 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; or where the consent of the user of that
service has been obtained. (18 USCS § 3121, subds. (a) &
(b).)
b) A government agency authorized to install and use a pen
register or trap and trace device under this chapter (18
USCS §§ 3121 et seq.0 or under State law shall use
technology reasonably available to it that restricts the
recording or decoding of electronic or other impulses to
the dialing, routing, addressing, and signaling information
utilized in the processing and transmitting of wire or
electronic communications so as not to include the contents
of any wire or electronic communications. (18 USCS § 3121,
subd. (c).)
c) Whoever knowingly violates the prohibition shall be
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fined under this title or imprisoned not more than one
year, or both.
3)Provides that unless prohibited by state law, a state
investigative or law enforcement officer may make application
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 under this chapter, in writing under oath or
equivalent affirmation, to a court of competent jurisdiction
of such state. (18 USCS § 3122.)
4)Provides that an attorney for the Government, upon an
application, the court shall enter an ex parte order
authorizing the installation and use of a pen register or trap
and trace device anywhere within the United States, if the
court finds that the attorney for the Government has certified
to the court that the information likely to be obtained by
such installation and use is relevant to an ongoing criminal
investigation. The order, upon service of that order, shall
apply to any person or entity providing wire or electronic
communication service in the United States whose assistance
may facilitate the execution of the order. Whenever such an
order is served on any person or entity not specifically named
in the order, upon request of such person or entity, the
attorney for the Government or law enforcement or
investigative officer that is serving the order shall provide
written or electronic certification that the order applies to
the person or entity being served. (18 USCS § 3121, subd.
(a)(1).)
5)Provides that a state investigative or law enforcement
officer, upon an application made as specified, the court
shall enter an ex parte order authorizing the installation and
use of a pen register or trap and trace device within the
jurisdiction of the court, if the court finds that the State
law enforcement or investigative officer has certified to the
court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal
investigation. (18 USCS § 3121, subd. (a)(2).)
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6)Provides that where the law enforcement agency implementing an
ex parte order under this subsection seeks to do so by
installing and using its own pen register or trap and trace
device on a packet-switched data network of a provider of
electronic communication service to the public, the agency
shall ensure that a record will be maintained which will
identify: (18 USCS § 3121, subd. (a)(3).)
a) Any officer or officers who installed the device and any
officer or officers who accessed the device to obtain
information from the network;
b) The date and time the device was installed, the date and
time the device was uninstalled, and the date, time, and
duration of each time the device is accessed to obtain
information;
c) The configuration of the device at the time of its
installation and any subsequent modification thereof; and
d) Any information which has been collected by the device.
7)Provides to the extent that the pen register or trap and trace
device can be set automatically to record this information
electronically, the record shall be maintained electronically
throughout the installation and use of such device. (18 USCS
§ 3121, subd. (a)(3).)
8)States that the record maintained shall be provided ex parte
and under seal to the court which entered the ex parte order
authorizing the installation and use of the device within 30
days after termination of the order (including any extensions
thereof). (18 USCS § 3121, subd. (a)(3).)
9)An order issued for installation of a pen register or track
and trace device shall include: (18 USCS § 3121, subd. (b).)
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a) The identity, if known, of the person to whom is leased
or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device
is to be attached or applied;
b) The identity, if known, of the person who is the subject
of the criminal investigation;
c) The attributes of the communications to which the order
applies, including the number or other identifier and, if
known, the location of the telephone line or other facility
to which the pen register or trap and trace device is to be
attached or applied, and, in the case of an order
authorizing installation and use of a trap and trace
device, the geographic limits of the order; and
d) A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates; and
e) Shall direct, upon the request of the applicant, the
furnishing of information, facilities, and technical
assistance necessary to accomplish the installation of the
pen register or trap and trace device.
10)Provides that 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 sixty days. (18
USCS § 3121, subd.(c).)
a) Provides that extensions of such an order may be
granted, but only upon an application for an order and upon
the judicial finding required as specified. The period of
extension shall be for a period not to exceed sixty days.
b) States that nondisclosure of existence of pen register
or a trap and trace device. An order authorizing or
approving the installation and use of a pen register or a
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trap and trace device shall direct that the order be sealed
until otherwise ordered by the court; and the person owning
or leasing the line or other facility to which the pen
register or a trap and trace device is attached, or
applied, or who is obligated by the order 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
court.
11)Provides that notwithstanding any other provision, any
investigative or law enforcement officer, specially designated
by the Attorney General, the Deputy Attorney General, the
Associate Attorney General, any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General, or by the principal prosecuting attorney of
any state or subdivision thereof acting pursuant to a statute
of that state, who reasonably determines that: (18 USCS §
3125.)
a) an emergency situation exists that involves;
b) immediate danger of death or serious bodily injury to
any person;
c) conspiratorial activities characteristic of organized
crime;
d) an immediate threat to a national security interest; or
e) an ongoing attack on a protected computer that
constitutes a crime punishable by a term of imprisonment
greater than one year;
12)Provides that in the absence of an authorizing order, such
use shall immediately terminate when the information sought is
obtained, when the application for the order is denied or when
forty-eight hours have lapsed since the installation of the
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pen register or trap and trace device, whichever is earlier.
(18 USCS § 3125.)
EXISTING STATE LAW:
1)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and directed to a peace
officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
2)States that a search warrant may be issued upon any of the
following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of any
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.
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
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g) When a provider of electronic communication service or
remote computing service has records or evidence, showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor 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 their
discovery.
h) When a provider of electronic communication service or
remote computing service has records or evidence showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor 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 their
discovery.
i) When the property or things to be seized include an item
or any evidence that tends to show a violation of the Labor
Code, as specified.
j) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault.
aa) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, a
person described in subdivision (a) of Section 8102 of the
Welfare and Institutions Code.
bb) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
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the custody or control of, a person who is subject to the
prohibitions regarding firearms under specified provisions
of the Family Code.
cc) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony or a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code.
dd) When a sample of the blood of a person constitutes
evidence that tends to show a violation of misdemeanor
driving under the influence and the person from whom the
sample is being sought has refused an officer's request to
submit to, or has failed to complete, a blood test.
ee) When the property or things to be seized are firearms or
ammunition or both that are owned by, in the possession of,
or in the custody or control of a person who is the subject
of a gun violence re straining order. This final provision
does not go into effect until January 1, 2016. (Pen. Code,
§ 1524, subd. (a).)
3)Provides that a search warrant cannot be issued but upon
probable cause, supported by affidavit, naming or describing
the person to be searched or searched for, and particularly
describing the property, thing, or things and the place to be
searched. (Pen. Code, § 1525.)
4)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. (Pen. Code, § 1528, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS: >
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1)Author's Statement: According to the author, "As technology
advances, criminals are becoming more and more sophisticated
in their use of technology to commit crimes and avoid law
enforcement. As a result, law enforcement officials have a
variety of electronic tools to counter this and help them
apprehend criminals in this age of rapidly changing
technology.
"One of the tools available to law enforcement is called a
'pen register' which allows law enforcement officers to record
all outgoing numbers from a particular telephone line. In
addition, another tool law enforcement uses is called a "trap
and trace device" which allows them to record what numbers
have called a specific telephone line, i.e. all incoming phone
numbers. Both pen registers and trap and trace devices do not
record audio or text messages and cannot be used to obtain
real-time location data on a cellular telephone. But these
tools are extremely useful for law enforcement in situations
such as gang and narcotic investigations.
"AB 929 would authorize state and local law enforcement
officers to use pen register and trap and trace devices,
including during emergency situations. The bill will require
law enforcement officers to obtain a court order before using
such devices by providing a judge with information that the
use of information is relevant to an ongoing criminal
investigation, and that there is probable cause to believe
that the pen register or trap and trace device will lead to
obtaining evidence of a crime.
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"This higher standard of proof (probable cause vs. reasonable
suspicion) is more restrictive than under federal law and is
more consistent with California law governing search warrants.
The bill would prohibit the installation and use of the device
for longer than 60 days, but would permit an extension if
there is proof of continuing probable cause to a judge. "
2)General Background: Federal law allows law enforcement
agencies to use pen register and trap and trace devices, but
they must obtain a court order from a judge prior to the
installation of the device. However, during an emergency
situation, law enforcement agencies may use these devices
without a court order if they obtain the court order within 48
hours of the use of the device. Law enforcement agencies must
demonstrate that there is reasonable suspicion that the use of
the device is relevant to an ongoing criminal investigation
and will lead to obtaining evidence of a crime for a judge to
authorize the use.
Though federal law authorizes states and local law enforcement
officers to use pen register and trap and trace devices by
obtaining a court order first, it does not allow them to
obtain an emergency order unless there is a state statute
authorizing and creating a process for states and local law
enforcement officers to do so. To date, California does not
have a state statute authorizing the use of pen registers or
trap and trace devices.
Pen registers and track and trace devices generally track
incoming and outgoing telephone calls. They are often
utilized by law enforcement to track which people in an
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investigation are communicating with one another and at what
times. Unlike a wiretap authorization, pen registers and
track and trace devices do not provide law enforcement with
the content of the messages which are transmitted. Wiretap
authorizations are therefore subject to a much higher standard
of scrutiny than the orders contained within this bill. Under
federal law, these authorizations can be granted on a
reasonable suspicion standard, while search warrants are
subject to a higher standard of probable cause.
3)Probable Cause Standard: Though the federal standard for the
issuance of a pen register or a trap and trace device is
"reasonable suspicion" California law arguably requires a
higher "probable cause" standard. (86 Ops.Cal.Atty.Gen 198
(2003).) This bill imposes the probable cause standard and is
therefore compliant with both state and federal law.
4)The Proposed Amendments: The proposed amendments were drafted
by committee staff in consultation with the Los Angeles
District Attorney's Office and the American Civil Liberties
Union (ACLU). The amendments are an attempt to address a
number of concerns raised by the ACLU. Namely, the amendments
limit the application of these orders to the same
circumstances for which law enforcement officers can request
the issuance of a search warrant. Additionally, the
amendments permit a judge for whom a request has been made for
an order to question the law enforcement agent pertaining to
the need for the information. The amendments also clarify
that any location information obtained by a pen register or a
track and trace device is limited to the information that is
contained in the telephone number (e.g. the area code). The
amendments address what information obtained pursuant to the
bill can be eventually made public, subject to the limitations
of an ongoing investigation. Finally, the amendments place
some technical limits on the application of the section to
ensure that the orders are limited to the contents of the
limitations placed in the bill.
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5)Attorney General Opinion: In 2003 the District Attorney of
Contra Costa County requested an opinion of the Attorney
General on the issue of whether or not state or local law
enforcement had the authority to seek a state court order
permitting a state law enforcement officer to install a pen
register or a trap and trace device. (86 Ops.Cal.Atty.Gen 198
(2003).) The Attorney General opined as follows:
"1. The federal statutes governing the installation of pen
registers and trap and trace devices do not provide authority
for issuance of a state court order permitting a state law
enforcement officer to install or use pen registers or trap
and trace devices.
"2. The state statutes governing the issuance of
administrative subpoenas do not provide authority for a state
law enforcement officer to install or use pen registers or
trap and trace devices.
"A 'pen register' records the numbers dialed out from a
particular telephone line. ( Smith v. Maryland (1979) 442
U.S. 735, 736,;<1> People v. Blair (1979) 25 Cal.3d 640, 654,
fn. 11.) A "trap and trace device" records the originating
telephone numbers of the calls dialed into a particular
telephone line. ( People v. Suite (1980) 101 Cal.App.3d 680,
684.) n1 The placement of pen registers and trap and trace
devices allows law enforcement officers to obtain such
information as the names of suspects in an investigation, the
identities and relationship between individuals suspected of
engaging in criminal activity, especially in conspiracies, and
the location of fugitives.
--------------------------
<1> Pen registers and trap and trace devices are not "wiretaps,"
that is, they do not eavesdrop on or record telephone
conversations. ( Smith v. Maryland, supra, 442 U.S. at p. 736,
fn. 1;$ => People v. Blair, supra, 25 Cal.3d at p. 654, fn. 11;
69 Ops.Cal.Atty.Gen. 55, 58 (1986).) Generally speaking, the
legal requirements for placing a wiretap are more stringent than
those for placing a pen register or trap and trace device. (69
Ops.Cal.Atty.Gen, supra, at pp. 56-58.)
AB 929
Page W
"Search warrants issued by a court and subpoenas issued either
by a court or grand jury are normally available to authorize
the placement of pen registers and trap and trace devices in
California. <2> The two questions presented for resolution
concern whether federal statutes governing the installation of
pen registers and trap and trace devices and state statutes
governing the issuance of administrative subpoenas may also
provide authority for state law enforcement officers to obtain
telephone calling records. We conclude that these two
additional sources of authority are not available to state law
enforcement officers in the circumstances presented.
"1. Federal Statutes
"The Fourth Amendment to the United States Constitution
guarantees 'the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable
searches and seizures.' To determine whether a particular
form of governmental surveillance is a "search" within the
meaning of the Fourth Amendment, courts generally look to the
leading case of Katz v. United States (1967) 389 U.S. 347,
which involved eavesdropping by means of an electronic
listening device placed on the outside of a telephone booth.
(See, e.g., Kyllo v. United States (2001) 533 U.S. 27, 32-33.)
In Katz, the court held that the eavesdropping in question
constituted an unlawful search because it violated a
subjective expectation of privacy that society recognized as
reasonable. ( Katz v. United States, supra, 389 U.S. at p.
353.)
"In Smith v. Maryland, supra, 442 U.S. 735, the court followed
--------------------------
<2> Law enforcement officers may also procure telephone calling
information by obtaining the person's consent or if "exigent
circumstances" are present. (See, e.g., People v. Chapman (1984)
36 Cal.3d 981, 113; People v. Suite, supra, 101 Cal.App.3d at p.
687.)
AB 929
Page X
the Katz standard, concluding that individuals have no Fourth
Amendment expectation of privacy in the numbers dialed to or
from their telephone lines. The court reasoned that telephone
customers are generally aware that telephone companies
routinely collect and use such information for various
purposes including billing and system maintenance.
"In 1986, following the Smith decision, Congress enacted a
statutory scheme (18 U.S.C. §§ 3121-3127) <3> regulating the
use of pen registers and trap and trace devices.<4> As
relevant for our purposes, section 3121 provides:
"(a) Except as provided in this section, no person may install
or use a pen register or a trap and trace device without first
obtaining a court order under section 3123 of this title . . .
.(a)(2) Unless prohibited by State law, a State investigative
or law enforcement officer may make application for an order
or an extension of an order under section 3123 of this title
authorizing or approving the installation and use of a pen
register or trap and trace device under this chapter, in
writing under oath or equivalent affirmation, to a court of
competent jurisdiction of such State. (b) An application
under subsection (a) of this section shall include (1) the
identity of . . . the State law enforcement or investigative
officer making the application and the identity of the law
enforcement agency conducting the investigation; and (2) a
--------------------------
<3> All references hereafter to title 18 of the United States
Code prior to footnote 7 are by section number only.
<4> The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA Patriot Act, Pub. L. No. 107-56) amended the
definitions of "pen register" and "trap and trace device" to
include processes that capture routing, addressing, or signaling
information transmitted by an electronic communication facility.
(18 U.S.C. § 3127 (3), (4).) These amendments permit government
officials to obtain information from computers and cell phones
as well as from land-line telephones. (See 18 U.S.C. § 3121.)
Issues arising from these statutory amendments are beyond the
scope of this opinion.
AB 929
Page Y
certification by the applicant that the information likely to
be obtained is relevant to an ongoing criminal investigation
being conducted by that agency.
"Section 3123 provides: (a)(2) Upon an application made under
section 3122 of this title, the court shall enter an ex parte
order authorizing the installation and use of a pen register
or trap and trace device within the jurisdiction of the court
if the court finds that . . . the State law enforcement or
investigative officer has certified to the court that the
information likely to be obtained by such installation and use
is relevant to an ongoing criminal investigation?(d) An order
authorizing or approving the installation and use of a pen
register or a trap and trace device shall direct that (1) the
order be sealed until otherwise ordered by the court; and (2)
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 court.
"Thus, as a general rule, federal law forbids the use of pen
registers and trap and trace devices without the consent of
the telephone consumer or a court order. ( § 3121.)
Significantly, the federal statutes do not allow state law
enforcement officers to apply for a state court order if the
order would be 'prohibited by State law.' ( § 3122(a)(2).)
Accordingly, we must look to California law to determine if
the federal statutes may provide authority for state law
enforcement officers to obtain telephone calling records in
AB 929
Page Z
the circumstances presented.<5>
"The California Constitution is a 'document of independent
force' (American Academy of Pediatrics v. Lungren (1997) 16
Cal.4th 307, 325), which extends protection for civil rights
broader than an independent of the parallel rights afforded by
the United States Constitution. (Id. at pp. 325-326; see
People v. Pettingill (1978) 21 Cal.3d 231, 247; People v.
Hannon (1977) 19 Cal.3d 588, 606.) Section 13 of article I of
the California Constitution protects "against unreasonable
seizures and searches."<6> Our Supreme Court has held "that,
in determining whether an illegal search has occurred under
the provisions of our Constitution, the appropriate test is
whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated
by unreasonable governmental intrusion." (Burrows v. Superior
Court (1974) 13 Cal.3d 238, 242-243.) In Burrows, the court
concluded that bank customers have a reasonable expectation of
--------------------------
<5> We recognize that the California Constitution eliminates any
judicially created independent state grounds for the exclusion
of evidence. (Cal. Const., art. I, § 28, subd. (d); In re Lance
W. (1985) 37 Cal.3d 873, 886-887.) As a result, telephone
calling records would be admissible against a California
defendant in a criminal trial even though their seizure violated
the California Constitution, as long as th e records were
admissible under the federal Constitution. (See, e.g., People v.
Bencomo (1985) 171 Cal.App.3d 1005, 1015; People v. Lissauer
(1985) 169 Cal.App.3d 413, 419.) Regardless of the evidence's
admissibility, however, the underlying act of seizure in
violation of the California Constitution would remain unlawful.
( In re Lance W., supra, 37 Cal.3d at p. 886; People v. Martino
(1985) 166 Cal.App.3d 777, 785, fn. 3.)
<6> "The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable seizures and
searches may not be violated . . . ." (Cal. Const., art. I, §
13.)
AB 929
Page A
privacy in the financial information they transmit to their
banks, reasoning that it is impossible to participate in the
economic life of contemporary society without maintaining a
bank account and that the totality of a person's bank records
provides a "virtual current biography." ( Id. at p. 247.)
"In People v. Blair, supra, 25 Cal.3d 640, the court rejected
the rationale of Smith v. Maryland, supra, 442 U.S. 735, and
concluded that telephone records, like the bank records found
protected under California law in Burrows v. Superior Court,
supra, 13 Cal.3d 238, were protected against unreasonable
searches and seizures in California. (Id. at p. 653.) In
Blair, the telephone records were obtained by a subpoena
issued by a Federal Bureau of Investigation agent under
authority of a United States Attorney as authorized by a
federal grand jury. The court found that the federal subpoena
was insufficient for purposes of the search and seizure
provisions of the California Constitution since there had been
no prior "judicial determination that law enforcement
officials were entitled" to the records. (Id. at p. 655; see
Carlson v. Superior Court (1976) 58 Cal.App.3d 13, 21-23.)
Consequently, the seizure of the telephone records was ruled a
violation of article I, section 13 of the California
Constitution.
"We believe that telephone calling records would additionally
be protected under article I, section 1 of the California
Constitution, which provides: 'All people are by nature free
and independent and have inalienable rights. Among these are
enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.'
"Under the rationale of Burrows and Blair, information
obtained from pen registers and trap and trace devices would
fall within the zone of privacy protected by the state
Constitution, since the records of incoming or outgoing calls
could lead to the discovery of an individual's 'virtual
current biography.' ( People v. Blair, supra, 25 Cal.3d at p.
653; Burrows v. Superior Court, supra, 13 Cal.3d at p. 247;
AB 929
Page B
People v. Chapman, supra, 36 Cal.3d at p. 109.)
"Based upon the foregoing, we find that the California
Constitution allows the placement of pen registers and trap
and trace devices only if a judicial ruling is first obtained
that the law enforcement officers are entitled to the records.
(See 69 Ops.Cal.Atty.Gen., supra, at p. 59.) Do the court
procedures set forth in federal law meet this state
constitutional standard for prior judicial review? They do
not.
"The federal statutory scheme permits state law enforcement
officers to apply for a state court order authorizing the use
of a pen register or trap and trace device based upon a
written certification that the information is 'relevant to an
ongoing criminal investigation.' (18 U.S.C. § 3122(b)(2).)
Upon a proper application, the court must issue the order. (18
U.S.C. § 3122(a)(2).) The statutes do not authorize a court to
go outside the written certification ( In re Order Authorizing
Installation of Pen Reg. (M.D.Fla. 1994) 846 F.Supp. 1555,
1559), thus making the judicial review 'ministerial in nature'
(United States v. Fregoso (8th Cir. 1995) 60 F.3d 1314, 1320).
"Under Borrows and Blair, this federal statutory process is
inadequate to protect a California resident's privacy
interests in telephone calling records. As previously noted,
the federal subpoena in Blair was found not to constitute
appropriate 'legal process' because issuance of the subpoena
was a ministerial act with no 'judicial determination' that
the issuer was 'entitled' to obtain the information. (People
v. Blair, supra, 25 Cal.3d at pp. 651, 655.) A seizure of
information is unreasonable when 'the character, scope, and
relevancy of the material obtained were determined entirely by
the exercise of the unbridled discretion of the police.' (
People v. Chapman, supra, 36 Cal.3d at p. 113, quoting Burrows
v. Superior Court, supra, 13 Cal.3d at p. 243); see People v.
Blair, supra, 25 Cal.3d at p. 651.)
AB 929
Page C
"The federal statutes governing pen registers and trap and
trace devices likewise fail the California constitutional
test. No adequate prior judicial review is provided in the
statutory scheme; rather, unbridled discretion is given to law
enforcement officers.
"We conclude in answer to the first question that the federal
statutes governing the installation of pen registers and trap
and trace devices do not provide authority for issuance of a
state court order permitting a state law enforcement officer
to install or use pen registers or trap and trace devices."
"2. State Administrative Subpoena Statutes
"Government Code section 11180<7> authorizes the head of each
of the state's departments to conduct investigations
concerning matters relating to the subjects under the
department's jurisdiction. Included within this power is the
right to subpoena records. (§ 11181, subd. (e).) The
department head may delegate subpoena powers to any officer of
the department authorized to conduct the investigation. (§
11182.)
"Significantly, the department head or designee may issue a
subpoena for investigative purposes in the absence of any
formal charge or court proceeding. (§§ 11180, 11181; Brovelli
v. Superior Court (1961) 56 Cal.2d 524, 527-528.) The
subpoenas are returnable directly to the department head, and
no provision is made for notice to a third party--such as a
telephone customer--or for the filing of a motion to quash or
other formal opposition. (Compare §§ 11181, 11184, 11187 with
Pen. Code, §§ 1325, 1327; Code Civ. Proc., §§ 1385.3, 1385.4.)
Instead, if the subpoenaed party fails to comply with the
subpoena, the department head may apply to a court for an
--------------------------
<7> All references hereafter to the Government Code are by
section number only.
AB 929
Page D
order enforcing the subpoena. (§ 11187.) If it appears at the
hearing 'that the subpoena was regularly issued . . . the
court shall enter an order' enforcing the subpoena. ( § 11188,
italics added.) Hence, judicial enforcement of administrative
subpoenas is subject to a standard less exacting than that
required for a criminal search warrant. (See Craib v. Bulmash
(1989) 49 Cal.3d 475, 481-486.)
"Of course, 'department heads cannot compel the production of
evidence in disregard of . . . the constitutional provisions
prohibiting unreasonable searches and seizures.' ( Brovelli v.
Superior Court, supra, 56 Cal.2d at p. 529; see also
Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60,
70, 79-80; Wood v. Superior Court (1985) 166 Cal.App.3d 1138,
1146-1147.) '[A] governmental administrative agency is not in
a special or privileged category, exempt from the right of
privacy requirements which must be met and honored generally
by law enforcement officials.' (Board of Medical Quality
Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679-680; see
Carlson v. Superior Court, supra, 58 Cal.App.3d at p. 22
['Surely an accused's constitutional right to privacy in his
papers and records is not diminished because law enforcement
officials seek to obtain them by subpoena rather than by
warrant'].)
'As with the federal statutes governing the installation of
pen registers and trap and trace devices, the state
administrative subpoena statutes do not contain a provision
allowing for prior judicial review establishing that the law
enforcement officers are entitled to the records. The
California Constitution requires such prior review.
"We conclude in answer to the second question that the state
statutes governing the issuance of administrative subpoenas do
not provide authority for a state law enforcement officer to
install or use pen registers or trap and trace devices
6)Argument in Support: According to The Los Angeles County
District Attorney's Office "A 'pen register' is an electronic
device which records all numbers called from (outgoing) a
AB 929
Page E
particular telephone line. A 'trap and trace device' records
what numbers had called a specific telephone, i.e. all
incoming phone numbers. Pen registers and trap and trace
devices are extremely useful investigative tools. They are
used to identify accomplices, for example.
"Under federal law, law enforcement agencies must obtain a
court order from a judge prior to the installation of a pen
register or trap and trace device. According to Section
3123(a)(1) of Title 18 of the United States Code, the court
shall enter an ex parte order authorizing the installation and
use of a pen register or trap and trace device anywhere within
the United States, if the court (state or federal) finds that
the attorney for the Government has certified to the court
that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal
investigation.
"Once obtained, a pen register or trap and trace device order
cannot exceed 60 days in duration. As opposed to a wiretap, a
pen register/trap and trace device only records the numbers
dialed to or from a particular phone number. It does not
record audio or text messages, and cannot be used to obtain
real-time location data on a cellular telephone. (47 U.S.C. §
1002(a)(2)(B).)
"Section 3125 of Title 18 of the United States Code authorizes
the installation and use of a pen register/trap and trace
device for 48 hours without a court order if an emergency
situation exists, including one that involves "immediate
danger of death or serious bodily injury to any person." An
emergency order can be obtained if grounds exist to obtain a
written order, but the emergency situation requires the
installation and use of a pen register or a trap and trace
device before an order authorizing such installation and use
can, with due diligence, be obtained. Within 48 hours after
the installation has occurred, or begins to occur, an order
approving the installation or use in accordance with section
AB 929
Page F
3123 must be obtained.
"Section 3125 of Title 18 of the United States Code authorizes
any investigative or law enforcement officer, specially
designated by enumerated prosecutorial agencies, to obtain an
emergency pen register/trap and trace device. However, there
is no enabling statute in California that allows California
District Attorneys to utilize section 3125.
"Emergency/warrantless pen registers are lawful in only six
states (AL, FL, GA, IA, TX, and WA) which possess emergency
state statutes in accordance with section 3125.
Notwithstanding, some law enforcement agencies in the
remaining 44 states utilize warrantless emergency
declarations. The result is that the requesting agency will
unlawfully receive pen register or trap and trace data. This
is a misdemeanor under federal law (18 U.S.C. § 3121). The
individuals who improperly access the information may incur
civil liability.
"Assembly Bill 929 would authorize state and local law
enforcement officers to use pen register and trap and trace
devices under state law. AB 929 would also authorize the
issuance of emergency pen registers and trap and trace
devices. Under the provisions of AB 929 a California court
could issue a court order authorizing the use of a pen
register and/or a trap and trace device upon a showing of
probable cause which is a higher standard than the reasonable
suspicion standard required under federal law.
"In 2003, the CA Attorney General's Office issued an opinion
concluding that the "federal statutes governing the
installation of pen registers and trap and trace devices do
not provide authority for issuance of a state court order
permitting a state law enforcement officer to install or use
AB 929
Page G
pen registers and trap and trace devices" because the federal
pen register statute requires less than probable cause. (86
Ops.Cal.Att.Gen 198 (2003).) Our office's 2013 Search Warrant
Manual cites this opinion and advises state law enforcement
officers to establish probable cause in the affidavit seeking
the installation or use of a pen register under the applicable
federal statute.
"AB 929 would create a comprehensive pen register/ trap and
trace device statute in the Penal Code to cover all requests
for pen registers and trap and trace devices in California,
including emergency pen registers."
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County Sheriff's Office (co-sponsor)
Los Angeles District Attorney's Office (co-sponsor)
Association for Los Angeles County Sheriffs
California District Attorneys Association
California State Sheriffs' Association
California Statewide Law Enforcement Association
Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles Police Protective League
Los Angeles County Professional Peace Officers Association
Riverside Sheriffs Association
Sacramento county Deputy Sheriffs' Association
Santa Ana Police Officers Association
Opposition
None
AB 929
Page H
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744