BILL ANALYSIS Ó AB 1924 Page 1 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: AB 1924 Page 2 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 AB 1924 Page 3 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 AB 1924 Page 4 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; AB 1924 Page 5 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 AB 1924 Page 6 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.) AB 1924 Page 7 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 AB 1924 Page 8 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, AB 1924 Page 9 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 AB 1924 Page 10 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 AB 1924 Page 11 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 AB 1924 Page 12 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 AB 1924 Page 13 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 AB 1924 Page 14 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 AB 1924 Page 15 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 AB 1924 Page 16 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 AB 1924 Page 17 Riverside Sheriffs' Association Opposition None Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744