BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1924


                                                                    Page  1


          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1924 (Low)


          As Amended  August 19, 2016


          2/3 vote.  Urgency


           -------------------------------------------------------------------- 
          |ASSEMBLY:  |72-0  |(May 27, 2016) |SENATE: |39-0  |(August 23,      |
          |           |      |               |        |      |2016)            |
          |           |      |               |        |      |                 |
          |           |      |               |        |      |                 |
           -------------------------------------------------------------------- 


          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.  









                                                                    AB 1924


                                                                    Page  2



          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


                                                                    Page  3


               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:










                                                                    AB 1924


                                                                    Page  4


          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


                                                                    Page  5