BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1924|
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CONSENT
Bill No: AB 1924
Author: Low (D)
Amended: 8/1/16 in Senate
Vote: 27 - Urgency
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 72-0, 5/27/16 - See last page for vote
SUBJECT: Pen registers: trap and trace devices: orders
SOURCE: Author
DIGEST: This bill 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.
ANALYSIS:
Existing law:
1)Provides, pursuant to the U.S. Constitution and the California
Constitution, 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.
Constitution 4th Amend.; California Constitution art. I, §
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Page 2
13.)
2)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.)
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 (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
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Page 3
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).)
6)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 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).)
1)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).)
2)Provides 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).)
3)Provides that an order issued for installation of a pen
register or track and trace device shall include:
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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
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).)
1) 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
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court. (18 USCS § 3121c).)
1) 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:
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.)
1) 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.)
2) 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.)
3) Provides that a search warrant may be issued only upon any
of the specified grounds: (Penal Code § 1524(a).)
4) 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
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describing the property, thing, or things and the place to be
searched. (Penal Code, § 1525.)
5) 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).)
6) Prohibits, generally, 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))
7) 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)
8) Specifies, as part of the Electronic Communications Privacy
ACT (ECPA), 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:
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.
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4) 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.
Background
According to the author:
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
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
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Page 8
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/2/16)
Los Angeles County Sheriff's Department (co-source)
Los Angeles County District Attorney's Office (co-source)
California Civil Liberties Advocacy
California State Sheriffs' Association
California Police Chiefs Association
California District Attorneys Association
San Diego County District Attorney
OPPOSITION: (Verified8/2/16)
None received
ASSEMBLY FLOOR: 72-0, 5/27/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Burke, Calderon, Campos,
Chang, Chau, Chávez, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian,
Obernolte, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Brough, Brown, Chiu, Dodd, Grove, Hadley,
Melendez, O'Donnell
AB 1924
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Prepared by: Mary Kennedy / PUB. S. /
8/8/16 10:17:40
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