BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1924 Hearing Date: June 28, 2016
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|Author: |Low |
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|Version: |May 23, 2016 |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Pen Registers: Trap and Trace Devices: Orders
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation:AB 929 (Chau) - Ch. 204, Stats. 2015
Support: California Civil Liberties Advocacy; California State
Sheriffs' Association; California Police Chiefs
Association; California District Attorneys
Association; San Diego County District Attorney; Los
Angeles District Attorney's Office
Opposition:
Assembly Floor Vote: 72 - 0
PURPOSE
The purpose of this bill is to provide 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.
Existing Constitutional law provides that the right of the
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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. Constitution 4th Amend.; California
Constitution art. I, § 13.)
Existing federal law provides that, 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.)
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.
A government agency authorized to install and use a pen
register or trap and trace device under this chapter (18
USCS §§ 3121 et seq) 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
(c).)
Whoever knowingly violates the prohibition shall be
fined under this title or imprisoned not more than one
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year, or both. . (18 USCS § 3121 (a) & (b).)
Existing federal law 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.)
Existing federal law 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 (a)(1).)
Existing federal law 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 (a)(2).)
Existing federal law provides that where the law enforcement
agency implementing an ex parte order under this subsection
seeks to do so by installing and using its own pen register or
trap and trace device on a packet-switched data network of a
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provider of electronic communication service to the public, the
agency shall ensure that a record will be maintained which will
identify:
Any officer or officers who installed the device and any
officer or officers who accessed the device to obtain
information from the network;
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;
The configuration of the device at the time of its
installation and any subsequent modification thereof; and
Any information which has been collected by the device.
(18 USCS § 3121(a)(3).)
Existing federal law 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(a)(3).)
Existing federal law 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(a)(3).)
Existing federal law provides that an order issued for
installation of a pen register or track and trace device shall
include:
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;
The identity, if known, of the person who is the subject
of the criminal investigation;
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
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authorizing installation and use of a trap and trace
device, the geographic limits of the order; and
A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates; and
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. : (18 USCS §
3121(b).)
Existing federal law 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.
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.
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
court. (18 USCS § 3121c).)
Existing federal law 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:
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an emergency situation exists that involves immediate
danger of death or serious bodily injury to any person;
conspiratorial activities characteristic of organized
crime;
an immediate threat to a national security interest; or
an ongoing attack on a protected computer that
constitutes a crime punishable by a term of imprisonment
greater than one year; (18 USCS § 3125.)
Existing federal law 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 law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, 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. (Penal Code § 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
1) When the property was stolen or embezzled;
2) When the property or things were used as the means of
committing a felony;
3) 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;
4) 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;
5) 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;
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6) When there is a warrant to arrest a person;
7) 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;
8) When the property to be seized includes evidence of a
violation of specified Labor Code sections;
9) When the property to be seized includes a firearm or
deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
10) When the property to be seized includes a firearm or
deadly weapon owned by a person apprehended because of
his or her mental condition;
11) When the property to be seized is a firearm in possession
of a person prohibited under the family code;
12) When the information to be received from the use of a
tracking device under shows a specified violation of the
Fish and Game Code or Public Resources Code;
13) When a sample of blood would show evidence of a DUI; or,
14) Starting January 1, 2016, when the property to be seized
is a firearm owned by a person subject to a gun violence
restraining order. (Penal Code § 1524(a).)
Existing law 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. (Penal Code, § 1525.)
Existing law 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 (a).)
Existing law generally prohibits a person from installing or
using a pen register or trap and trace device except by court
order or by the provider of electronic or wire communication
under specified circumstances. (Penal Code § 638.51))
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Existing law provides that a peace officer may make an
application to a magistrate for an order authorizing the
installation and use of a pen register or a trap and trace
device under specified circumstances. The application shall be
in writing under oath. The applicant shall certify that the
information likely to be obtained is relevant to an ongoing
criminal investigation and shall include a statement of the
offense to which the information likely be obtained by the pent
register or trap and trace device. (Penal Code § 638.52)
Existing law, as part of the Electronic Communications Privacy
ACT (ECPA), specifies how and when a government entity may
access electronic device information by means of physical
interaction or electronic communication with the device. (Penal
Code § 1546.1)
This bill 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.
This bill ensures that telecommunication providers are
compensated for their work when complying with a court order for
a pen register or trap and trace device.
This bill clarifies that courts may suppress any information
illegally obtained from a pen register or trap trace device.
This bill provides that a government entity that obtains
information from a trap and trace device or a pen register shall
provide notice to the targets, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
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overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
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dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
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)? 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?
Last year Governor Brown also signed the Electronic
Communication Privacy Act (SB 178) into law on October
8, 2015. The ECPA adds Chapter 3.6 to the Penal Code.
Absent a statutory exemption, Penal Code section
15471(a) will preclude a government entity from
compelling the production of our access to electronic
communication information from a service provider,
compelling the production of or access to electronic
device information from any person or entity other
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than the authorized possessor of the device, or
accessing electronic device information by means of
physical interaction or electronic communication with
the electronic device.
A government entity must obtain a search warrant
issued pursuant to Chapter 3 (commencing with Penal
Code section 1523) and subject to the requirement of
Penal Code section 1546.1(d) to compel the production
of or access to electronic communication information
from a service provider, or compel production of or
access to electronic device information from any
person or entity other than the authorized possessor
of the 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 search warrant in order to
obtain a pen register. Search warrants are valid for
ten days, whereas pen register/trap and 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
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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 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. We are working
with the ACLU to draft amendments that would require
law enforcement to provide notice to the identified
targets of a pen register/trap trace order and to add
suppression language that would statutorily authorize
the suppression of any electronic information obtained
from a pen register/trap trace order via a Penal Code
Section 1538.5 motion.
2. Pen Registers and Trap and Trace Devices
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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 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.
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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.
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 permitted the
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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
by the ECPA's 10-day authorizations.
3. 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:
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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.
4. Allowance of Pen Registers and Trap Devices
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This bill makes an exception to the ECPA, allowing pen
registers and trap or trace devices to be installed for 60
days. It also places notice requirements on the entity that
obtains the information.
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