BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 1924|
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                                    THIRD READING


          Bill No:  AB 1924
          Author:   Low (D), et al.
          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:    Los Angeles County District Attorney's Office
                     Los Angeles County Sheriff's Department 

          
          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  








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            be searched and the persons or things to be seized. (U.S.  
            Constitution 4th Amend.; California Constitution art. I, §  
            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  








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            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).) 


          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  








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            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  
               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  








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                of the investigation to the listed subscriber, or to any  
                other person, unless or until otherwise ordered by the  
                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  








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             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.) 

           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. 









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           3) Clarifies that courts may suppress any information illegally  
             obtained from a pen register or trap trace device. 

           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  








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               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.

          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 District Attorneys Association
          California Police Chiefs Association
          California State Sheriffs' 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,  








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            Melendez, O'Donnell



          Prepared by:  Mary Kennedy / PUB. S. / 
          8/9/16 9:45:51


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