BILL ANALYSIS Ó
AB 1924
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 1924
(Bigelow and Low) - As Amended April 5, 2016
SUBJECT: Pen registers: track and trace devices: orders
SUMMARY: Clarifies that law enforcement agencies have the
authority to seek and use a pen register/trap-and-trace order
for up to 60 days instead of 10 days, and provides for a
suppression remedy as well as reasonable compensation to private
companies and individuals that assist in those efforts.
Specifically, this bill:
1)Authorizes a government entity to 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 pursuant to an order for a
pen register or trap and trace device, or both, as specified
and subject to existing requirements for warrants for
electronic information.
2)Authorizes 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, or both, as specified and
subject to existing requirements for warrants for electronic
information.
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3)Clarifies that an order or extension order authorizing or
approving the installation of a pen register/trap-and-trace
device be sealed until the order expires, instead of upon the
order of the issuing magistrate or judge.
4)Requires that a wire or electronic communication service,
landlord, custodian, or other person who provides facilities
or technical assistance pursuant to a lawful pen register or
trap and trace order shall be reasonably compensated by the
requesting peace officer's law enforcement agency for the
reasonable expenses incurred in providing the facilities and
assistance.
5)Explicitly authorizes a motion to suppress wire or electronic
information obtained or retained improperly, as provided.
EXISTING LAW:
1)Authorizes a peace officer to apply 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 must be in writing under oath or
equivalent affirmation, and must include the identity of the
peace officer making the application and the identity of the
law enforcement agency conducting the investigation. The
applicant must certify that the information likely to be
obtained is relevant to an ongoing criminal investigation and
must include a statement of the offense to which the
information likely to be obtained by the pen register or trap
and trace device relates. (Penal Code (PC) Section 638.52)
2)Authorizes a government entity to compel the production of or
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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 specified
circumstances. (PC 1546.1(b))
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to address a
conflict between recently amended statutes that would
interfere with law enforcement agencies' ability to seek a
60-day pen register/trap-and trace-device, which are telephone
surveillance devices used to record incoming and outgoing
phone numbers. This bill is sponsored by the Los Angeles
County District Attorney's Office and Los Angeles County
Sheriff's Department.
2)Author's statement . According to the author, "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, they 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 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."
"Last year AB 929 (Chau) was signed into law by the governor
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on August 13, 2015....AB 929 authorized California law
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?AB 929 was necessary because while [federal law]
authorizes the installation and use of a pen register/trap and
trace device for 48 hours without a court order in an
emergency situation, the absence of an enabling statute in
California precluded local law enforcement agencies from
lawfully obtaining emergency pen register/trap and trace
device orders."
"Last year Governor Brown also signed the Electronic
Communication Privacy Act [ECPA] into law on October 8,
2015?Absent a statutory exemption, [ECPA] will preclude a
government entity from compelling the production of or access
to electronic communication information from a service
provider, compelling the production of or access to electronic
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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?"
"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. The ECPA would therefore require law enforcement to seek a
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search warrant in order to obtain a pen register. Search
warrants are valid for 10 days, whereas pen register/trap and
trap device orders are valid for 60 days under federal law and
AB 929? AB 1924 still requires a court to make a finding that
there is probable cause to grant an order for a pen register
or a trap and trace device. "
3)Pen registers/trap and trace devices . Pen registers/trap and
trace devices are used by law enforcement for telephone
surveillance to record incoming and outgoing phone numbers
from a tapped line. Historically, "pen registers" are used to
record outgoing numbers from a particular telephone line,
while "trap and trace" devices allow them to record the
numbers that call in. The two terms are generally used
together because the two technologies are almost always
requested together. For purposes of simplicity, they will be
jointly referred to here as a "pen/trap" device. A pen/trap
order is only for the capture of incoming and outgoing phone
numbers, and not to record audio or text messages, or to
obtain real-time geophysical data on a cellphone.
4)This bill in practice . As noted above, federal law gives law
enforcement agencies the ability to use a pen/trap device
without a court order in an emergency situation, as long as
they obtain a court order within 48 hours. However, the lack
of a state enabling statute was viewed by law enforcement as a
barrier to use for emergency orders. In 2015, AB 929 (Chau)
explicitly authorized and enabled law enforcement access to
use emergency pen/trap devices, while raising the standard of
evidence required from reasonable suspicion to probable cause.
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At the same time, California also passed ECPA, which codified
and expanded on existing case law to generally require law
enforcement entities to obtain a search warrant before
accessing data on an electronic device or from an online
service provider.
The primary concern raised by the authors and sponsors is that
ECPA's general warrant requirement conflicts with the pen/trap
provisions - specifically, ECPA would only allow for a 10-day
pen/trap order, rather than the 60-day order traditionally
granted to pen/trap devices. This bill would clarify that
authority by providing an explicit reference to pen/trap
orders to the code section dealing with surveillance of
electronic information last revised by SB 178, which would
have the effect of again allowing orders to extend for 60
days.
The authors also point out that SB 178 and AB 929 of 2015
inadvertently deleted a provision for written pen/trap orders
providing reasonable compensation to private individuals and
companies that provide facilities and technical assistance to
law enforcement when placing and operating a pen/trap device -
this bill would restore that provision, as well as provide a
suppression remedy for evidence obtained improperly similar to
that found in ECPA.
5)Two-thirds vote requirement . The California Constitution
provides for a "Right to Truth-in-Evidence" as a result of the
passage of the Victim's Bill of Rights Act (California
Proposition 8, 1982). That measure was intended to ensure
that a state court did not unnecessarily exclude evidence
relevant to a criminal prosecution, even if gathered in a
manner that violates the rights of the defendant, although the
U.S. Constitution may still require exclusion in some cases.
Any exception to this right requires a two-thirds vote by both
the Assembly and the Senate.
Because this bill's suppression remedy would exclude evidence
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obtained or retained in violation of this bill's provisions,
it will require a two-thirds vote for passage on the Assembly
Floor.
6)Related legislation . SB 1121 (Leno) would authorize a
government entity to access electronic device information by
means of physical interaction or electronic communication with
the device to access geolocation information in response to a
911 call. This bill is currently pending in the Senate Public
Safety Committee.
7)Previous legislation . AB 929 (Chau), Chapter 204, Statutes of
2015, authorizes state and local law enforcement to use pen
register and trap and trace devices under state law, and
permits the issuance of emergency pen registers and trap and
trace devices.
SB 178 (Leno), Chapter 651, Statutes of 2015, creates the
California Electronic Communications Privacy Act, which
generally requires law enforcement entities to obtain a search
warrant before accessing data on an electronic device or from
an online service provider.
8)Double-referral . This bill was double-referred to the
Assembly Public Safety Committee, where it was heard on March
29, 2016, and voted out on a 7-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
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Los Angeles County District Attorney's Office (co-sponsor)
Los Angeles County Sheriff's Department (co-sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles Police Protective League
Riverside Sheriffs' Association
Opposition
None on file.
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Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200