BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 929 Hearing Date: June 16, 2015
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|Author: |Chau |
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|Version: |June 4, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Pen Registers: Authorized Use
HISTORY
Source: Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
Prior Legislation:None
Support: The Association for Los Angeles Deputy Sheriffs;
California Civil Liberties Advocacy; California
District Attorneys Association; The California Peace
Officers' Association; The California Police Chiefs
Association; California State Lodge, Fraternal Order
of Police; California State Sheriffs' Association;
California Statewide Law Enforcement Association; Long
Beach Police Officers Association; Los Angeles County
Professional Peace Officers Association; The Los
Angeles Police Protective League; The Riverside
Sheriffs Association; Sacramento County Deputy
Sheriffs' Association; Santa Ana Police Officers
Association
Opposition:None known
Assembly Floor Vote: 77 - 0
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See Comment 5 for Amendments to be proposed in Committee
PURPOSE
The purpose of this bill is to authorize state and local law
enforcement to use pen register and trap and trace devices under
state law, and to permit the issuance of emergency pen registers
and trap and trace devices.
Existing Constitutional law 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 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. Constitution 4th Amend.; California
Constitution art. I, § 13.)
Existing federal law provides that, 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.)
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.
A government agency authorized to install and use a pen
register or trap and trace device under this chapter (18
USCS §§ 3121 et seq) or under State law shall use
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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
(c).)
Whoever knowingly violates the prohibition shall be
fined under this title or imprisoned not more than one
year, or both. . (18 USCS § 3121 (a) & (b).)
Existing federal law 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.)
Existing federal law 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 (a)(1).)
Existing federal law 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
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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 (a)(2).)
Existing federal law 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:
Any officer or officers who installed the device and any
officer or officers who accessed the device to obtain
information from the network;
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;
The configuration of the device at the time of its
installation and any subsequent modification thereof; and
Any information which has been collected by the device.
(18 USCS § 3121(a)(3).)
Existing federal law 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(a)(3).)
Existing federal law 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(a)(3).)
Existing federal law provides that an order issued for
installation of a pen register or track and trace device shall
include:
The identity, if known, of the person to whom is leased
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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;
The identity, if known, of the person who is the subject
of the criminal investigation;
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
A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates; and
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. : (18 USCS §
3121(b).)
Existing federal law 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.
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.
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 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. (18 USCS § 3121c).)
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Existing federal law 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:
an emergency situation exists that involves immediate
danger of death or serious bodily injury to any person;
conspiratorial activities characteristic of organized
crime;
an immediate threat to a national security interest; or
an ongoing attack on a protected computer that
constitutes a crime punishable by a term of imprisonment
greater than one year; (18 USCS § 3125.)
Existing federal law 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 pen register or trap and trace device,
whichever is earlier. (18 USCS § 3125.)
Existing law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, 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. (Penal Code § 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
1) When the property was stolen or embezzled;
2) When the property or things were used as the means of
committing a felony;
3) 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
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purpose of concealing them or preventing them from being
discovered;
4) 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;
5) 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;
6) When there is a warrant to arrest a person;
7) 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;
8) When the property to be seized includes evidence of a
violation of specified Labor Code sections;
9) When the property to be seized includes a firearm or
deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
10) When the property to be seized includes a firearm or
deadly weapon owned by a person apprehended because of
his or her mental condition;
11) When the property to be seized is a firearm in possession
of a person prohibited under the family code;
12) When the information to be received from the use of a
tracking device under shows a specified violation of the
Fish and Game Code or Public Resources Code;
13) When a sample of blood would show evidence of a DUI; or,
14) Starting January 1, 2016, when the property to be seized
is a firearm owned by a person subject to a gun violence
restraining order. (Penal Code § 1524(a).)
Existing law 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
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place to be searched. (Penal Code, § 1525.)
Existing law 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 (a).)
This bill 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.
This bill defines "trap and trace device" as 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.
This bill provides that in general a person may not install or
use a pen register or a trap and trace device without first
obtaining a court order. However, 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:
To operate, maintain, and test a wire or electronic
communication service.
To protect the rights or property of the provider.
To protect users of the service from abuse of service or
unlawful use of service.
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 sue of that
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service from fraudulent, unlawful or abusive use of
service.
If the consent of the user of that service has been
obtained.
This bill provides that illegally installing a pen register or
trap and trace device is a misdemeanor with a fine of up to
$2,500 and/or up to one year in prison.
This bill 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 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.
This bill states that 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 the use of a pen
register or a trap and trace device is relevant to an ongoing
investigation and the that there is probable cause to believe
that the pen register or trap and trace device will lead to any
of the following:
Recovery of stolen or embezzled property
Property or things used as the means of committing a
felony.
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 been delivered them for the purpose of concealing
them or preventing them from being discovered.
Evidence tends to show a felony has been committed or
tends to show that a particular person has committed or is
committing a felony.
Evidence tends to show that sexual exploitation of a
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child or possession of a matter depicting the sexual
conduct of a person under 18 years of age has occurred or
is occurring.
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.
Evidence that tends to show specified Labor Code
violations.
Evidence that does any of the following"
o Tends to show that a felony, a misdemeanor
violation of the Fish and Game Code or a misdemeanor
violation of the Public Resources Code.
o 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.
o 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.
This bill provides 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.
This bill provides that an order issued by a magistrate shall
specify all of the following:
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;
The identity, if known, of the person who is the subject
of the criminal investigation;
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;
A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
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device relates; and
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.
This bill 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 60 days.
This bill 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.
This bill 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.
This bill 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.
This bill 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
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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.
This bill 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 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.
This bill 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.
This bill provides that the magistrate before issuing the order
pursuant 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.
This bill 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:
There are grounds upon which an order could be issued
under specified normal application for a pen register or
trap and trace device.
There is probable cause to believe that an emergency
situation exists with respect to the investigation of a
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crime.
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.
This bill 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 the order shall also recite the time of
the oral approval and shall be retroactive to the time of the
original oral approval.
This bill 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.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
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content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
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.
Federal law (18 USC §3123(a)(1)) 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, they 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.
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AB 929 would authorize state and local law enforcement
officers to use pen register and trap and trace devices,
including during emergency situations. This bill would
authorize a judge to issue a court order to install a pen
register/trap and trace device upon finding that the use of a
pen register/trap and trace device 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.
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. Background on Pen Registers
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 registers 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 investigation are
communicating with one another and at what times. Unlike a
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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. Installation of a Pen Register or Trap and Trace Device Upon
a Showing of Probable
Cause
This bill generally prohibits a person from installing or using
a pen register or trap and trace device except by court order or
by the provider of electronic or wire communication under
specified circumstances.
Under this bill, a peace officer may make an application to a
magistrate for an order authorizing the installation and use of
a pen register or a trap and trace device under specified
circumstances. The application shall be in writing under oath.
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 be obtained by the pent register or trap and
trace device.
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).) In 2003, the California 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 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).) This bill imposes the
probable cause standard and is therefore compliant with both
state and federal law.
4. Support
AB 929 (Chau ) Page
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The sponsor of this bill, the Los Angeles County District
Attorney's Office states:
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 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
AB 929 (Chau ) Page
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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 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.
AB 929 (Chau ) Page
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5. Author's amendments to be offered in Committee.
The author will be offering the following amendments to address
some issues raised by the ACLU:
Amendment #1
On page 4, line 19 delete the (1)
Amendment #2
On page 5, delete lines 29-38.
Amendment #3
On page 8, delete line 5
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