BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 929|
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THIRD READING
Bill No: AB 929
Author: Chau (D)
Amended: 6/17/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/16/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 77-0, 5/7/15 (Consent) - See last page for vote
SUBJECT: Pen registers: authorized use
SOURCE: Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
DIGEST: This bill 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.
ANALYSIS
Existing federal law:
1) Provides that, except as provided, no person may install or
use a pen register or a trap and trace device without first
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obtaining a court order under Section 3123 of this title [18
U.S.C. § 3123] or under the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.). (18 U.S.C. § 3121.)
2) 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 U.S.C. § 3122.)
3) Requires the court, upon an application, to 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 U.S.C. § 3123 (a)(1).)
4) Requires the court, upon an application made as specified,
to 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 U.S.C. § 3123 (a)(2).)
5) 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
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shall ensure that a record will be maintained which will
identify:
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.
(18 U.S.C. § 3123 (a)(3).)
6) 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 U.S.C. § 3123 (a)(3).)
7) 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 U.S.C. § 3123 (a)(3).)
8) Provides that an order issued for installation of a pen
register or track and trace device shall include specified
information. (18 U.S.C. § 3123 (b).)
9) 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. (18
U.S.C. § 3123 (c).)
10)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
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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 U.S.C. § 3125.)
11)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 U.S.C. § 3125.)
Existing state law:
1) 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.)
2) Provides that a search warrant may be issued upon specified
grounds. (Penal Code § 1524(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. (Penal 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. (Penal Code § 1528 (a).)
This bill:
1) Defines "pen register" as a device or process that records
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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.
2) 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.
3) 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 service from fraudulent,
unlawful or abusive use of service; or, if the consent of the
user of that service has been obtained.
4) 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.
5) 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
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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.
6) 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:
a) Recovery of stolen or embezzled property.
b) Property or things used as the means of committing a
felony.
c) 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.
d) Evidence tends to show a felony has been committed or
tends to show that a particular person has committed or is
committing a felony.
e) Evidence tends to show that sexual exploitation of a
child or possession of a matter depicting the sexual
conduct of a person under 18 years of age 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 specified Labor Code
violations.
h) Evidence that does any of the following:
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i) Tends to show a felony, a misdemeanor violation
of the Fish and Game Code or a misdemeanor violation of
the Public Resources Code.
ii) 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.
iii) 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.
7) 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.
8) 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;
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; and
e) The order shall direct, if the applicant has
requested, the furnishing of information, facilities, and
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technical assistance necessary to accomplish the
installation of the pen register or trap and trace device.
9) 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.
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.
11)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.
12)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.
13)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
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take place, if the assistance is directed by the order.
14)Provides that 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.
15)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.
16)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.
17)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
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installation and use can, with due diligence, be submitted
and acted upon.
18)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.
19)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.
20)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.
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 registers and trap and trace devices by
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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
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.
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
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the federal pen register statute requires less than probable
cause. (86 Ops.Cal.Atty.Gen 198 (2003).) This bill imposes the
probable cause standard and is therefore compliant with both
state and federal law.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified 6/30/15)
Los Angeles County District Attorney's Office (co-source)
Los Angeles County Sheriff's Department (co-source)
Association for Los Angeles Deputy Sheriffs
California Civil Liberties Advocacy
California District Attorneys Association
California Peace Officers' Association
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
Los Angeles Police Protective League
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
San Diego County District Attorney
Santa Ana Police Officers Association
OPPOSITION: (Verified 6/30/15)
None received
ASSEMBLY FLOOR: 77-0, 5/7/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
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Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Campos, Roger Hernández, Steinorth
Prepared by:Mary Kennedy / PUB. S. /
7/1/15 11:15:47
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