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