BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 929


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          929 (Chau)


          As Amended  June 17, 2015


          Majority vote


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          |ASSEMBLY:  |77-0  |(May 7, 2015)  |SENATE: |39-0  |(July 6, 2015)   |
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          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.  








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          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  








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            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.









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             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  








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          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