BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1924


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          Date of Hearing:  March 29, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                    1924 (Bigelow) - As Introduced  February 11, 2016


                        As Proposed to Amended in Committee 

          SUMMARY:  Provides an exemption from the Electronic  
          Communications Privacy Act (ECPA) for pen registers and trap and  
          trace devices to permit authorization for the devices to be used  
          for 60 days.  Specifically, this bill:  


          1)Provides a statutory exemption in ECPA for pen registers and  
            trap and trace devices that will ensure that orders for these  
            devices are valid for 60 days rather than 10 days provided for  
            in ECPA.  


          2)Ensures that telecommunication providers are compensated for  
            their work when complying with a court order for a pen  
            register or trap and trace device. 


          3)Clarifies that courts may suppress any information illegally  
            obtained from a pen register or trap trace device. 


          EXISTING FEDERAL LAW:  









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          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.  (U.S.  
            Const., 4th Amend.; Cal. Const., art. I, § 13.)

          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  
            USCS § 3123] or under the Foreign Intelligence Surveillance  
            Act of 1978 (50 U.S.C. 1801 et seq.). (18 USCS § 3121.)

             a)   The prohibition does not apply with respect to the use  
               of a pen register or a trap and trace device by a provider  
               of electronic or wire communication service relating to the  
               operation, maintenance, and testing of a wire or electronic  
               communication service or to the protection of the rights or  
               property of such provider, or to the protection of users of  
               that service from abuse of service or unlawful use of  
               service; or to record the fact that a wire or electronic  
               communication was initiated or completed in order to  
               protect such provider, another provider furnishing service  
               toward the completion of the wire communication, or a user  
               of that service, from fraudulent, unlawful or abusive use  
               of service; or where the consent of the user of that  
               service has been obtained.  (18 USCS § 3121, subds. (a) &  
               (b).)   

             b)   A government agency authorized to install and use a pen  
               register or trap and trace device under this chapter (18  
               USCS §§ 3121 et seq.0 or under State law shall use  
               technology reasonably available to it that restricts the  
               recording or decoding of electronic or other impulses to  
               the dialing, routing, addressing, and signaling information  
               utilized in the processing and transmitting of wire or  
               electronic communications so as not to include the contents  
               of any wire or electronic communications.  (18 USCS § 3121,  
               subd. (c).)  

             c)   Whoever knowingly violates the prohibition shall be  








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               fined under this title or imprisoned not more than one  
               year, or both.

          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.  (18 USCS § 3122.)

          4)Provides that an attorney for the Government, upon an  
            application, the court shall 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 USCS § 3121, subd.  
            (a)(1).)  

          5)Provides that a state investigative or law enforcement  
            officer, upon an application made as specified, the court  
            shall 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 USCS § 3121, subd. (a)(2).)  

          6)Provides that where the law enforcement agency implementing an  
            ex parte order under this subsection seeks to do so by  








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            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  
            shall ensure that a record will be maintained which will  
            identify:  (18 USCS § 3121, subd. (a)(3).)  

             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.   


          7)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 USCS  
            § 3121, subd. (a)(3).)  

          8)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 USCS § 3121, subd. (a)(3).) 

          9)An order issued for installation of a pen register or track  
            and trace device shall include:  (18 USCS § 3121, subd. (b).)   


             a)   The identity, if known, of the person to whom is leased  
               or in whose name is listed the telephone line or other  
               facility to which the pen register or trap and trace device  
               is to be attached or applied;









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             b)   The identity, if known, of the person who is the subject  
               of the criminal investigation;

             c)   The attributes of the communications to which the order  
               applies, including the number or other identifier and, if  
               known, the location of the telephone line or other facility  
               to which the pen register or trap and trace device is to be  
               attached or applied, and, in the case of an order  
               authorizing installation and use of a trap and trace  
               device, the geographic limits of the order; and

             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)   Shall direct, upon the request of the applicant, the  
               furnishing of information, facilities, and technical  
               assistance necessary to accomplish the installation of the  
               pen register or trap and trace device. 

          10)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 sixty days.  (18  
            USCS § 3121, subd.(c).)  

             a)   Provides that extensions of such an order may be  
               granted, but only upon an application for an order and upon  
               the judicial finding required as specified. The period of  
               extension shall be for a period not to exceed sixty days.

             b)   States that nondisclosure of existence of pen register  
               or a trap and trace device.  An 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 court; and the person owning  
               or leasing the line or other facility to which the pen  
               register or a trap and trace device is attached, or  
               applied, or who is obligated by the order 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  








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               court.

          11)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 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: (18 USCS §  
            3125.)  

             a)   an emergency situation exists that involves; 

             b)   immediate danger of death or serious bodily injury to  
               any person;

             c)   conspiratorial activities characteristic of organized  
               crime;

             d)   an immediate threat to a national security interest; or

             e)   an ongoing attack on a protected computer that  
               constitutes a crime punishable by a term of imprisonment  
               greater than one year;

          12)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 USCS § 3125.)  
          


          EXISTING STATE LAW:  
          1)Defines a "search warrant" as a written order in the name of  
            the people, signed by a magistrate and 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.  (Pen. Code, § 1523.)








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          2)States that a search warrant may be issued upon any of the  
            following grounds:

             a)   When the property was stolen or embezzled.

             b)   When the property or things were used as the means of  
               committing a felony.

             c)   When the property or things are in the possession of any  
               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.

             d)   When the property or things to be seized consist of any  
               item or constitute any evidence that tends to show a felony  
               has been committed, or tends to show that a particular  
               person has committed a felony.

             e)   When the property or things to be seized consist of  
               evidence that tends to show that sexual exploitation of a  
               child, or possession of matter depicting sexual conduct of  
               a person under the age of 18 years, has occurred or is  
               occurring.

             f)   When there is a warrant to arrest a person.

             g)   When a provider of electronic communication service or  
               remote computing service has records or evidence, showing  
               that property was stolen or embezzled constituting a  
               misdemeanor, or that property or things are in the  
               possession of any person with the intent to use them as a  
               means of committing a misdemeanor 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 their  
               discovery.  

             h)   When a provider of electronic communication service or  
               remote computing service has records or evidence showing  
               that property was stolen or embezzled constituting a  
               misdemeanor, or that property or things are in the  








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               possession of any person with the intent to use them as a  
               means of committing a misdemeanor 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 their  
               discovery.

             i)   When the property or things to be seized include an item  
               or any evidence that tends to show a violation of the Labor  
               Code, as specified.

             j)   When the property or things to be seized include a  
               firearm or any other deadly weapon at the scene of, or at  
               the premises occupied or under the control of the person  
               arrested in connection with, a domestic violence incident  
               involving a threat to human life or a physical assault.

             aa)  When the property or things to be seized include a  
               firearm or any other deadly weapon that is owned by, or in  
               the possession of, or in the custody or control of, a  
               person described in subdivision (a) of Section 8102 of the  
               Welfare and Institutions Code.

             bb)  When the property or things to be seized include a  
               firearm that is owned by, or in the possession of, or in  
               the custody or control of, a person who is subject to the  
               prohibitions regarding firearms under specified provisions  
               of the Family Code.

             cc)  When the information to be received from the use of a  
               tracking device constitutes evidence that tends to show  
               that either a felony or a misdemeanor violation of the Fish  
               and Game Code, or a misdemeanor violation of the Public  
               Resources Code.

             dd)  When a sample of the blood of a person constitutes  
               evidence that tends to show a violation of misdemeanor  
               driving under the influence and the person from whom the  
               sample is being sought has refused an officer's request to  
               submit to, or has failed to complete, a blood test.

             ee)  When the property or things to be seized are firearms or  
               ammunition or both that are owned by, in the possession of,  








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               or in the custody or control of a person who is the subject  
               of a gun violence re straining order.  This final provision  
               does not go into effect until January 1, 2016.  (Pen. Code,  
               § 1524, subd. (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.  (Pen. 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.  (Pen. Code, § 1528, subd. (a).)


          FISCAL EFFECT:  


          COMMENTS: 


          1)Author's Statement:  According to the author, "AB 1924 will  
            guarantee law enforcement can utilize a 'pen register' and  
            'trap and trace device' as a public safety tool by amending  
            EPCA to add an exemption for 'pen register' and 'trap and  
            trace devices.'  AB 1924 will still require a court to find  
            that the use of a pen register/trap and trace device 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."


          2)Pen Registers and Trap and Trace Devices:  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  








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            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 register and trap and trace devices by  
            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.  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.  


          3)AB 929 (Chau):  Last year the legislature passed and the  
            governor signed AB 929 (Chau), Chapter 204, Statutes of 2015.   
            AB 929 authorized 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.  Under this legislation, the authorization for  
            the use of a trap and trace device or a pen register was for  
            60 days from the date of issuance, with extensions of up to 60  
            days.  However, the governor signed AB 929 prior to signing  
            the ECPA and as a result the authorization was chaptered out  








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            by the ECPA's 10-day authorizations.  


          4)Electronic Communications Privacy Act (ECPA):  Last year the  
            legislature passed SB 178 (Leno), Chapter 651, Statutes of  
            2015, which prohibited a government entity from compelling the  
            production of, or access to, electronic-communication  
            information or electronic-device information without a search  
            warrant or wiretap order, except under specified emergency  
            situations.  Specifically, this new law prohibits a government  
            entity from:


             a)   Compelling the production, of or access to, electronic  
               communication information from a service provider;


             b)   Compelling the production of or access to electronic  
               device information from any person or entity other than the  
               authorized possessor of the device; and,


             c)   Accessing electronic device information by means of  
               physical interaction or electronic communication with the  
               device, although voluntary disclosure to a government  
               entity is permitted. 



            The ECPA also permits a government entity to compel the  
            production of, or access to, electronic communication  
            information subject 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 pursuant to a warrant, wiretap order, order for  
            electronic reader records, or subpoena issued pursuant to  
            existing state law, as specified. 


          5)Argument in Support:  According to the Los Angeles District  
            Attorney, "Last year AB 929 (Chau) was signed into law by the  
            governor on August 13, 2015.  AB 929 authorized California law  








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            enforcement officers to apply for the installation of a pen  
            register and trap and trace device as well as an emergency  
            oral pen register and trap and trace device under state, not  
            federal, law.


            "A pen register records all numbers called from (outgoing) a  
            particular telephone line. A 'trap and trace device' records  
                what numbers had called a specific telephone, i.e. all  
            incoming phone numbers. Pen registers and trap and trace  
            devices are extremely useful investigative tools. They are  
            used to identify accomplices, for example.






            "AB 929 was necessary because federal law requires states to  
 
            have an enabling statute authorizing the use of a pen  
 
            register/trap and trace device in emergency situations, in  
 
            order for local law enforcement agencies to lawfully obtain an  
 
            emergency pen register/trap and trace device order. 





            "Last year Governor Brown also signed SB 178 (Leno) the  
 
            Electronic Communication Privacy Act (ECPA) into law on  
 
            October 8, 2015.  The ECPA adds Chapter 3.6 to the Penal Code.  
 
             Absent a statutory exemption, ECPA precludes a government  
 
            entity from compelling the production or access to electronic  
 








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            information from a service provider, compelling the production  
 
            of or access to electronic device information from any person  
 
            or entity other than the authorized possessor of the device,  
 
            or accessing electronic device information by means of  
 
            physical interaction or electronic communication with the  
 
            electronic device without a search warrant.





            "The ECPA was undoubtedly drafted to regulate law  
 
            enforcement's use of electronic serial number (ESN)  
 
            identification technology.  However, an unintended consequence  
 
            of the ECPA is the potential nullification of AB 929.  The  
 
            ECPA's definitions of electronic communication and electronic  
 
            communication information include the call detail records that  
 
            are captured by a pen register/trap and trace device.  The  
 
            ECPA requires the issuance of a search warrant pursuant to  
 
            Chapter 3 (PC 1523 et seq.) for electronic information.  The  
 
            new pen register/trap and trace device statute is in Chapter  
 
            1.5. The ECPA would therefore require law enforcement to seek  
 
            a search warrant in order to obtain a pen register.  Search  
 
            warrants are valid for ten days, whereas pen register/trap and  
 








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            trap device orders are valid for 60 days under federal law and  
 
            AB 929.





            "Furthermore, the AB 929 amendment process resulted in a  
 
            drafting error. Language regarding the compensation of  
 
            telecommunication providers by law enforcement for reasonable  
 
            expenses incurred while complying with the court's order was  
 
            inadvertently deleted from section 638.52, which applies to  
 
            written applications for a pen register/trap and trace order.  
 
            The language was only included in section 638.53, which  
 
            governs an oral application for an order in an emergency.





            "AB 1924 provides the necessary statutory exemption in ECPA  
 
            for pen registers and trap and trace devices that will ensure  
 
            that orders for these devices are valid for 60 days (as called  
 
            for in AB 929) rather than 10 days provided for in ECPA and  
 
            ensures that telecommunication providers are compensated for  
 
            their work when complying with a court order for a pen  
 
            register or trap and trace device.  AB 1924 also provides  
 








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            additional privacy protections for Californians by including a  
 
            language that would allow a court to suppress any information  
 
            illegally obtained from a pen register or trap trace device. 





            "AB 1924 still requires a court to find that the use of a pen  
 
            register/trap and trace device 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.  We are continuing to  
 
            work with representatives from the ACLU to draft language that  
 
            will provide a time frame for law enforcement agencies to  
 
            provide notice to individuals whose electronic devices were  
 
            the subject of a court ordered pen register and/or trap and  
 
            trace device."

          6)Prior Legislation:


             a)   AB 929 (Chau), Chapter 204, Statutes of 2015, authorized  
               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.  


             b)   SB 178 (Leno), Chapter 651, Statutes of 2015, which  
               prohibited a government entity from compelling the  








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               production of, or access to, electronic-communication  
               information or electronic-device information without a  
               search warrant or wiretap order, except under specified  
               emergency situations.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Los Angeles County Sheriff's Office (co-sponsor)


          Los Angeles District Attorney's Office (co-sponsor)


          Association for Deputy District Attorneys


          Association for Los Angeles Deputy Sheriffs


          California Civil Liberties Advocacy 


          California District Attorneys Association


          California Police Chiefs Association  


          California State Sheriffs' Association 


          Los Angeles Police Protective League 


          Professional Peace Officers Association 








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          Riverside Sheriffs' Association 




          Opposition


          None 





          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744