Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1924

Introduced by Assembly Members Bigelow and Low

February 11, 2016

An act to amend Sections 638.52 and 1546.1 begin delete of end delete begin insert of, and to add Section 638.55 to, end insert the Penal Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

AB 1924, as amended, Bigelow. Pen registers: track and trace devices: orders.

(1) Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. begin insert Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to 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, except as specified. end insert

This bill would begin insert instead end insert require begin insert an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached 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. The bill would require end insert the requesting peace officer’s law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.

(2) Existing law begin delete only permits end delete begin insert authorizes end insert a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information begin insert only end insert pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.

This bill would additionally begin delete allow end delete begin insert authorize end insert a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.

begin insert

(3) Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.

end insert begin insert

This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.

end insert begin insert

(4) The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.

end insert begin insert

This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.

end insert

Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 638.52 of the Penal Code is amended to
read:

638.52.  

(a) 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.

(b) 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 use of a pen register or a trap and trace device is
relevant to an ongoing investigation and that there is probable
cause to believe that the pen register or trap and trace device will
lead to any of the following:

(1) Recovery of stolen or embezzled property.

(2) Property or things used as the means of committing a felony.

(3) 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 delivered
them for the purpose of concealing them or preventing them from
being discovered.

(4) Evidence that tends to show a felony has been committed,
or tends to show that a particular person has committed or is
committing a felony.

(5) Evidence that tends to show that sexual exploitation of a
child, in violation of Section 311.3, or possession of matter
depicting sexual conduct of a person under 18 years of age, in
violation of Section 311.11, has occurred or is occurring.

(6) 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.

(7) Evidence that tends to show a violation of Section 3700.5
of the Labor Code, or tends to show that a particular person has
violated Section 3700.5 of the Labor Code.

(8) Evidence that does any of the following:

(A) Tends to show that a felony, a misdemeanor violation of
the Fish and Game Code, or a misdemeanor violation of the Public
Resources Code, has been committed or is being committed.

(B) 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.

(C) 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.

(c) Information acquired solely pursuant to the authority for a
pen register or a 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. Upon the request of the person seeking
the pen register or trap and trace device, the magistrate may seal
portions of the application pursuant to People v. Hobbs (1994) 7
Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence
Code.

(d) An order issued pursuant to subdivision (b) shall specify all
of the following:

(1) 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.

(2) The identity, if known, of the person who is the subject of
the criminal investigation.

(3) 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.

(4) A statement of the offense to which the information likely
to be obtained by the pen register or trap and trace device relates.

(5) 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.

(e) 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.

(f) Extensions of the original order may be granted upon a new
application for an order under subdivisions (a) and (b) 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.

(g) 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 begin delete otherwise ordered by the
magistrate who issued the order, or a judge of the superior court, end delete
begin insert the order, including any extensions, expires, end insert and that the person
owning or leasing the line to which the pen register or trap and
trace device is begin delete attached, or who has been ordered by the court to
provide assistance to the applicant, end delete begin insert attached end insert 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 begin delete person, unless or until otherwise ordered by the magistrate
or a judge of the superior court, or for compliance with Sections
1054.1 and 1054.7. end delete begin insert person. end insert

(h) Upon the presentation of an order, entered under subdivisions
(b) or (f), 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 take place, if the assistance is directed by the order.

(i) 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.

(j) 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.

(k) 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.

(l) The magistrate, before issuing the order pursuant to
subdivision (b), 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.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 638.55 is added to the end insert begin insert Penal Code end insert begin insert , end insert immediately
following Section 638.53 begin insert , to read: end insert

begin insert

begin insert 638.55. end insert   

(a) Any person in a trial, hearing, or proceeding may
move to suppress wire or electronic information obtained or
retained in violation of the Fourth Amendment to the United States
Constitution or of this chapter. The motion shall be made,
determined, and be subject to review in accordance with the
procedures set forth in subdivisions (b) to (q), inclusive, of Section
1538.5.

(b) The Attorney General may commence a civil action to compel
any government entity to comply with the provisions of this chapter.

(c) An individual whose information is targeted by a warrant,
order, or other legal process that is not in compliance with this
chapter, the California Constitution, or the United States
Constitution, or a service provider or any other recipient of the
warrant, order, or other legal process may petition the issuing
court to void or modify the warrant, order, or process, or to order
the destruction of any information obtained in violation of this
chapter, the California Constitution, or the United States
Constitution.

end insert

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 1546.1 of the Penal Code is amended to read:

1546.1.  

(a) Except as provided in this section, a government
entity shall not do any of the following:

(1) Compel the production of or access to electronic
communication information from a service provider.

(2) Compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device.

(3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
This section does not prohibit the intended recipient of an electronic
communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.

(b) A government entity may compel the production of or access
to electronic communication information from a service provider,
or compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device only under the following circumstances:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code.

(4) Pursuant to a subpoena issued pursuant to existing state law,
provided that the information is not sought for the purpose of
investigating or prosecuting a criminal offense, and compelling
the production of or access to the information via the subpoena is
not otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any authority under state
law to compel the production of or access to electronic information.

(5) Pursuant to an order for a pen register or trap and trace
device, or both, issued pursuant to begin delete Sections 638.50 to 638.53,
inclusive, and subject to subdivision (d). end delete begin insert Chapter 1.5 (commencing
with Section 630) of Title 15 of Part 1. end insert

(c) A government entity may access electronic device
information by means of physical interaction or electronic
communication with the device only as follows:

(1) Pursuant to a warrant issued pursuant to Chapter 3
(commencing with Section 1523) and subject to subdivision (d).

(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.

(3) With the specific consent of the authorized possessor of the
device.

(4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.

(5) If the government entity, in good faith, believes that an
emergency involving danger of death or serious physical injury to
any person requires access to the electronic device information.

(6) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the entity shall only
access electronic device information in order to attempt to identify,
verify, or contact the owner or authorized possessor of the device.

(7) Except where prohibited by state or federal law, if the device
is seized from an inmate’s possession or found in an area of a
correctional facility under the jurisdiction of the Department of
Corrections and Rehabilitation where inmates have access and the
device is not in the possession of an individual and the device is
not known or believed to be the possession of an authorized visitor.
Nothing in this paragraph shall be construed to supersede or
override Section 4576.

begin insert

(8) Pursuant to an order for a pen register or trap and trace
device, or both, issued pursuant to Chapter 1.5 (commencing with
Section 630) of Title 15 of Part 1.

end insert

(d) Any warrant for electronic information shall comply with
the following:

(1) The warrant shall describe with particularity the information
to be seized by specifying the time periods covered and, as
appropriate and reasonable, the target individuals or accounts, the
applications or services covered, and the types of information
sought.

(2) The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and not subject to further
review, use, or disclosure without a court order. A court shall issue
such an order upon a finding that there is probable cause to believe
that the information is relevant to an active investigation, or review,
use, or disclosure is required by state or federal law.

(3) The warrant shall comply with all other provisions of
California and federal law, including any provisions prohibiting,
limiting, or imposing additional requirements on the use of search
warrants. If directed to a service provider, the warrant shall be
accompanied by an order requiring the service provider to verify
the authenticity of electronic information that it produces by
providing an affidavit that complies with the requirements set forth
in Section 1561 of the Evidence Code. Admission of that
information into evidence shall be subject to Section 1562 of the
Evidence Code.

(e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
order, a court may, at its discretion, do any or all of the following:

(1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information
necessary to achieve the objective of the warrant or order is
produced or accessed.

(2) Require that any information obtained through the execution
of the warrant or order that is unrelated to the objective of the
warrant be destroyed as soon as feasible after the termination of
the current investigation and any related investigations or
proceedings.

(f) A service provider may voluntarily disclose electronic
communication information or subscriber information when that
disclosure is not otherwise prohibited by state or federal law.

(g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (f), it
shall destroy that information within 90 days unless one or more
of the following circumstances apply:

(1) The entity has or obtains the specific consent of the sender
or recipient of the electronic communications about which
information was disclosed.

(2) The entity obtains a court order authorizing the retention of
the information. A court shall issue a retention order upon a finding
that the conditions justifying the initial voluntary disclosure persist,
in which case the court shall authorize the retention of the
information only for so long as those conditions persist, or there
is probable cause to believe that the information constitutes
evidence that a crime has been committed.

(3) The entity reasonably believes that the information relates
to child pornography and the information is retained as part of a
multiagency database used in the investigation of child
pornography and related crimes.

(h) If a government entity obtains electronic information
pursuant to an emergency involving danger of death or serious
physical injury to a person, that requires access to the electronic
information without delay, the entity shall, within three days after
obtaining the electronic information, file with the appropriate court
an application for a warrant or order authorizing obtaining the
electronic information or a motion seeking approval of the
emergency disclosures that shall set forth the facts giving rise to
the emergency, and if applicable, a request supported by a sworn
affidavit for an order delaying notification under paragraph (1) of
subdivision (b) of Section 1546.2. The court shall promptly rule
on the application or motion and shall order the immediate
destruction of all information obtained, and immediate notification
pursuant to subdivision (a) of Section 1546.2 if such notice has
not already been given, upon a finding that the facts did not give
rise to an emergency or upon rejecting the warrant or order
application on any other ground.

(i) This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil discovery
subpoena to do any of the following:

(1) Require an originator, addressee, or intended recipient of
an electronic communication to disclose any electronic
communication information associated with that communication.

(2) Require an entity that provides electronic communications
services to its officers, directors, employees, or agents for the
purpose of carrying out their duties, to disclose electronic
communication information associated with an electronic
communication to or from an officer, director, employee, or agent
of the entity.

(3) Require a service provider to provide subscriber information.