BILL ANALYSIS Ó AB 929 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 929 (Chau) As Amended June 17, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |77-0 |(May 7, 2015) |SENATE: |39-0 |(July 6, 2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: PUB. S. 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. The Senate amendments make technical, non-substantive amendments to the bill. 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 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. AB 929 Page 2 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 United States Code (U.S.C.) Section 3123] or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. Section 1801 et seq.). 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. EXISTING STATE LAW: 1)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. 2)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. AS PASSED BY THE ASSEMBLY: 1)Defined "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 AB 929 Page 3 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)Defined "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)Specified 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: 4)Provided, 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, as specified. 5)Provided 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. 6)Provided 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. AB 929 Page 4 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 and acted upon. 7)Provided 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 Penal Code 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. FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: 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 AB 929 Page 5 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. "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. " Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0001097