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