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