BILL ANALYSIS Ó
AB 1924
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CONCURRENCE IN SENATE AMENDMENTS
AB
1924 (Low)
As Amended August 19, 2016
2/3 vote. Urgency
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|ASSEMBLY: |72-0 |(May 27, 2016) |SENATE: |39-0 |(August 23, |
| | | | | |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: 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.
The Senate amendments:
1)Establish a deadline of three days to provide notice to the
identified target of a pen-register or trap-and-trace order,
or to the Department of Justice if there is no identified
target.
2)Double join this bill with SB 1121 (Leno) of the current
legislative session to prevent chaptering out issues.
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EXISTING FEDERAL LAW:
1)Provides 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.
2)Provides, 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
United States Code (U.S.C.) Section 3123] or under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.).
a) 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.
b) A government agency authorized to install and use a pen
register or trap and trace device under this chapter (18
U.S.C. Section 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
AB 1924
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of any wire or electronic communications.
c) Whoever knowingly violates the prohibition shall be
fined under this title or imprisoned not more than one
year, or both.
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.
EXISTING STATE LAW:
1)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and 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.
2)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.
3)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.
AS PASSED BY THE ASSEMBY, this bill:
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1)Provided 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)Ensured that telecommunication providers are compensated for
their work when complying with a court order for a pen
register or trap and trace device.
3)Clarified that courts may suppress any information illegally
obtained from a pen register or trap trace device.
4)Provided 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.
5)Specified that this act is an urgency statute.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: According to the author, "AB 1924 will guarantee law
enforcement can utilize a 'pen register' and 'trap and trace
device' as a public safety tool by amending ECPA to add an
exemption for 'pen register' and 'trap and trace devices.' AB
1924 will still require a court to find that the use of a pen
register/trap and trace device is relevant to an ongoing
criminal investigation, and that there is probable cause to
believe that the pen register or trap and trace device will lead
to obtaining evidence of a crime."
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744 FN:
0004803
AB 1924
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