BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1924| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1924 Page 2 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 AB 1924 Page 3 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 AB 1924 Page 4 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 AB 1924 Page 5 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 AB 1924 Page 6 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. AB 1924 Page 7 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 AB 1924 Page 8 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, AB 1924 Page 9 Melendez, O'Donnell Prepared by: Mary Kennedy / PUB. S. / 8/9/16 9:45:51 **** END ****