AB 1924: Privacy: electronic communications.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-09-23
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require a government entity that obtains information pursuant to an order for a pen register or trap and trace device to notify the identified targets of the order within 30 days after the termination of the period of the order that information about the recipient has been compelled or requested. The bill would allow a court to order a delay of this notification if it finds that there is reason to believe notification may have an adverse result, as defined, and to grant extensions of the delay, as provided. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(5)This bill would provide that the prohibition against a government entity compelling the production of or access to electronic communication information or electronic device information without a search warrant, wiretap order, order for electronic reader records, or subpoena does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(6)The bill would incorporate changes to Section 1546.1 of the Penal Code proposed by both this bill and SB 1121, which would become operative only if both bills are enacted and become effective on or before January 1, 2017, and this bill is enacted after SB 1121.
(7)This bill would declare that it is to take effect immediately as an urgency statute.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require a government entity that obtains information pursuant to an order for a pen register or trap and trace device to notify the identified targets of the order within 30 days after the termination of the period of the order that information about the recipient has been compelled or requested. The bill would allow a court to order a delay of this notification if it finds that there is reason to believe notification may have an adverse result, as defined, and to grant extensions of the delay, as provided. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(5)This bill would provide that the prohibition against a government entity compelling the production of or access to electronic communication information or electronic device information without a search warrant, wiretap order, order for electronic reader records, or subpoena does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(6)The bill would incorporate changes to Section 1546.1 of the Penal Code proposed by both this bill and SB 1121, which would become operative only if both bills are enacted and become effective on or before January 1, 2017, and this bill is enacted after SB 1121.
(7)This bill would declare that it is to take effect immediately as an urgency statute.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require a government entity that obtains information pursuant to an order for a pen register or trap and trace device to notify the identified targets of the order within 30 days after the termination of the period of the order that information about the recipient has been compelled or requested. The bill would allow a court to order a delay of this notification if it finds that there is reason to believe notification may have an adverse result, as defined, and to grant extensions of the delay, as provided. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(5)This bill would provide that the prohibition against a government entity compelling the production of or access to electronic communication information or electronic device information without a search warrant, wiretap order, order for electronic reader records, or subpoena does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(6)The bill would incorporate changes to Section 1546.1 of the Penal Code proposed by both this bill and SB 1121, which would become operative only if both bills are enacted and become effective on or before January 1, 2017, and this bill is enacted after SB 1121.
(5)
(7)This bill would declare that it is to take effect immediately as an urgency statute.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require a government entity that obtains information pursuant to an order for a pen register or trap and trace device to notify the identified targets of the order within 30 days after the termination of the period of the order that information about the recipient has been compelled or requested. The bill would allow a court to order a delay of this notification if it finds that there is reason to believe notification may have an adverse result, as defined, and to grant extensions of the delay, as provided. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(5)This bill would declare that it is to take effect immediately as an urgency statute.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require a government entity that obtains information pursuant to an order for a pen register or trap and trace device to notify the identified targets of the order within 30 days after the termination of the period of the order that information about the recipient has been compelled or requested. The bill would allow a court to order a delay of this notification if it finds that there is reason to believe notification may have an adverse result, as defined, and to grant extensions of the delay, as provided. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/32/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/32/3 vote of the Legislature.
(5)This bill would declare that it is to take effect immediately as an urgency statute.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order. Under existing law, an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device is required to direct that the order be sealed until otherwise ordered by the magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, except as specified.
This bill would instead require an order or extension order authorizing or approving the installation and use of a pen register or a trap and trace device direct that the order be sealed until the order, including any extensions, expires, and would require that the order or extension direct that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person. The bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law only permits authorizes a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information only pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally allow authorize a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(3)Existing law authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device only in specified circumstances, including, among others, pursuant to a warrant or wiretap order, or with the specific consent of the authorized possessor of the device.
This bill would additionally authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device.
(4)The California Constitution provides for the Right to Truth in Evidence, which requires a 2/3 vote of the Legislature to enact a statute that would exclude any relevant evidence from any criminal proceeding, as specified.
This bill would authorize any person in a trial, hearing, or proceeding to move to suppress wire or electronic information obtained or retained in violation of the 4th Amendment to the United States Constitution or of the pen register and trap and trace device provisions described above, as specified, and would authorize the Attorney General to commence a civil action to compel any government entity to comply with those provisions. The bill would also authorize an individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with those provisions, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process to petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of those provisions, the California Constitution, or the United States Constitution. Because this bill would authorize the exclusion of relevant evidence obtained or retained in violation of those pen register and trap and trace device provisions in a criminal proceeding, it requires a 2/3 vote of the Legislature.
(1)Existing law generally makes it a crime to install or use a pen register or trap and trace device without court approval. Existing law allows a peace officer to make an application to a magistrate for an order authorizing or approving the installation and use of a pen register or trap and trace device and requires a provider of wire or electronic communication service, landlord, custodian, or other person, upon presentation of an order, to provide the peace officer with all information, facilities, and technical assistance necessary to accomplish the installation, as specified, if the assistance is directed by the order.
This bill would require the requesting peace officers law enforcement agency to compensate a provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to these provisions for the reasonable expenses incurred in providing the facilities and assistance.
(2)Existing law only permits a government entity to compel the production of, or access to, electronic communication from a service provider or access to electronic device information pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena.
This bill would additionally allow a government entity to compel production of the above communications and information pursuant to an order for a pen register or trap and trace device.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.54 is added to the Penal Code, to read:638.54.(a)Except as otherwise provided in this section, a government entity that obtains information pursuant to Section 638.52, or obtains information pursuant to oral authorization pursuant to Section 638.53, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the order a notice that informs the recipient that information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the order or a written statement setting forth facts giving rise to the emergency. The notice shall be provided no later than 30 days after the termination of the period of the order, any extensions, or an emergency request.
(b)(1)Prior to the expiration of the 30-day period specified in subdivision (a), the government entity may submit a request, supported by a sworn affidavit, for an order delaying unsealing of the order and notification and prohibiting the person owning or leasing the line to which the pen register or trap and trace device is attached from disclosing the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or any other person. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the order or emergency authorization a document that includes the information described in subdivision (a) and a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual. The notice shall be provided no later than three days after the expiration of the period of delay of the notification.
(c)If there is no identified target of an order or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice, no later than three days after the termination of the period of the order, any extensions, or an emergency request, all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department, no later than three days after the expiration of the period of delay of the notification, all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)For the purposes of this section, adverse result has the meaning set forth in subdivision (a) of Section 1546.
SEC. 3.Section 638.55 is added to the Penal Code, immediately following Section 638.54, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 4.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. This paragraph shall not be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
SEC. 4.5.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to a tracking device search warrant issued pursuant to paragraph (12) of subdivision (a) of Section 1524 and subdivision (b) of Section 1534.
(4)With the specific consent of the authorized possessor of the device.
(5)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(6)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(7)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the government entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(8)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility or a secure area of a local detention facility where inmates have access, the device is not in the possession of an individual, and the device is not known or believed to be the possession of an authorized visitor. This paragraph shall not be construed to supersede or override Section 4576.
(9)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation.
(10)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.
(11)If the government entity accesses information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(12)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought, provided, however, that in the case of a warrant described in paragraph (1) of subdivision (c), the court may determine that it is not appropriate to specify time periods because of the specific circumstances of the investigation, including, but not limited to, the nature of the device to be searched.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to further review, use, or disclosure except pursuant to a court order or to comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The government entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The government entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The government entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(4)The service provider or subscriber is, or discloses the information to, a federal, state, or local prison, jail, or juvenile detention facility, and all participants to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the government entity.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if that notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground. This subdivision does not apply if the government entity obtains information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(k)This chapter shall not be construed to alter the authority of a government entity that owns an electronic device to compel an employee who is authorized to possess the device to return the device to the government entitys possession.
SEC. 5.Section 4.5 of this bill incorporates amendments to Section 1546.1 of the Penal Code proposed by both this bill and Senate Bill 1121. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, but this bill becomes operative first, (2) each bill amends Section 1546.1 of the Penal Code, and (3) this bill is enacted after Senate Bill 1121, in which case Section 1546.1 of the Penal Code, as amended by Section 4 of this bill, shall remain operative only until the operative date of Senate Bill 1121, at which time Section 4.5 of this bill shall become operative.
SEC. 6.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for government entities to more effectively utilize pen registers and trap and trace devices when engaging in vital law enforcement activities, it is necessary for this bill to take immediate effect.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.54 is added to the Penal Code, to read:638.54.(a)Except as otherwise provided in this section, a government entity that obtains information pursuant to Section 638.52, or obtains information pursuant to oral authorization pursuant to Section 638.53, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the order a notice that informs the recipient that information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the order or a written statement setting forth facts giving rise to the emergency. The notice shall be provided no later than 30 days after the termination of the period of the order, any extensions, or an emergency request.
(b)(1)Prior to the expiration of the 30-day period specified in subdivision (a), the government entity may submit a request, supported by a sworn affidavit, for an order delaying unsealing of the order and notification and prohibiting the person owning or leasing the line to which the pen register or trap and trace device is attached from disclosing the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or any other person. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the order or emergency authorization a document that includes the information described in subdivision (a) and a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual. The notice shall be provided no later than three days after the expiration of the period of delay of the notification.
(c)If there is no identified target of an order or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice, no later than three days after the termination of the period of the order, any extensions, or an emergency request, all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department, no later than three days after the expiration of the period of delay of the notification, all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)For the purposes of this section, adverse result has the meaning set forth in subdivision (a) of Section 1546.
SEC. 3.Section 638.55 is added to the Penal Code, immediately following Section 638.54, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 4.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. This paragraph shall not be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
SEC. 4.5.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to a tracking device search warrant issued pursuant to paragraph (12) of subdivision (a) of Section 1524 and subdivision (b) of Section 1534.
(4)With the specific consent of the authorized possessor of the device.
(5)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(6)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(7)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the government entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(8)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility or a secure area of a local detention facility where inmates have access, the device is not in the possession of an individual, and the device is not known or believed to be the possession of an authorized visitor. This paragraph shall not be construed to supersede or override Section 4576.
(9)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation.
(10)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.
(11)If the government entity accesses information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(12)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought, provided, however, that in the case of a warrant described in paragraph (1) of subdivision (c), the court may determine that it is not appropriate to specify time periods because of the specific circumstances of the investigation, including, but not limited to, the nature of the device to be searched.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to further review, use, or disclosure except pursuant to a court order or to comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The government entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The government entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The government entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(4)The service provider or subscriber is, or discloses the information to, a federal, state, or local prison, jail, or juvenile detention facility, and all participants to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the government entity.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if that notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground. This subdivision does not apply if the government entity obtains information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(k)This chapter shall not be construed to alter the authority of a government entity that owns an electronic device to compel an employee who is authorized to possess the device to return the device to the government entitys possession.
SEC. 5.Section 4.5 of this bill incorporates amendments to Section 1546.1 of the Penal Code proposed by both this bill and Senate Bill 1121. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, but this bill becomes operative first, (2) each bill amends Section 1546.1 of the Penal Code, and (3) this bill is enacted after Senate Bill 1121, in which case Section 1546.1 of the Penal Code, as amended by Section 4 of this bill, shall remain operative only until the operative date of Senate Bill 1121, at which time Section 4.5 of this bill shall become operative.
SEC. 6.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for government entities to more effectively utilize pen registers and trap and trace devices when engaging in vital law enforcement activities, it is necessary for this bill to take immediate effect.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.54 is added to the Penal Code, to read:638.54.(a)Except as otherwise provided in this section, a government entity that obtains information pursuant to Section 638.52, or obtains information pursuant to oral authorization pursuant to Section 638.53, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the order a notice that informs the recipient that information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the order or a written statement setting forth facts giving rise to the emergency. The notice shall be provided no later than 30 days after the termination of the period of the order, any extensions, or an emergency request.
(b)(1)Prior to the expiration of the 30-day period specified in subdivision (a), the government entity may submit a request, supported by a sworn affidavit, for an order delaying unsealing of the order and notification and prohibiting the person owning or leasing the line to which the pen register or trap and trace device is attached from disclosing the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or any other person. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the order or emergency authorization a document that includes the information described in subdivision (a) and a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual. The notice shall be provided no later than three days after the expiration of the period of delay of the notification.
(c)If there is no identified target of an order or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice, no later than three days after the termination of the period of the order, any extensions, or an emergency request, all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department, no later than three days after the expiration of the period of delay of the notification, all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)For the purposes of this section, adverse result has the meaning set forth in subdivision (a) of Section 1546.
SEC. 3.Section 638.55 is added to the Penal Code, immediately following Section 638.54, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 4.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall This paragraph shall not be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
SEC. 4.5.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to a tracking device search warrant issued pursuant to paragraph (12) of subdivision (a) of Section 1524 and subdivision (b) of Section 1534.
(3)
(4)With the specific consent of the authorized possessor of the device.
(4)
(5)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)
(6)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)
(7)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the government entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)
(8)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation or a secure area of a local detention facility where inmates have access and access, the device is not in the possession of an individual individual, and the device is not known or believed to be the possession of an authorized visitor. Nothing in this This paragraph shall not be construed to supersede or override Section 4576.
(9)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation.
(10)Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.
(11)If the government entity accesses information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(12)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought. sought, provided, however, that in the case of a warrant described in paragraph (1) of subdivision (c), the court may determine that it is not appropriate to specify time periods because of the specific circumstances of the investigation, including, but not limited to, the nature of the device to be searched.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not shall not be subject to further review, use, or disclosure without a court order. except pursuant to a court order or to comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all either or both of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The government entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The government entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The government entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(4)The service provider or subscriber is, or discloses the information to, a federal, state, or local prison, jail, or juvenile detention facility, and all participants to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the government entity.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such that notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground. This subdivision does not apply if the government entity obtains information concerning the location or the telephone number of the electronic device in order to respond to an emergency 911 call from that device.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(j)This section does not limit the authority of the Public Utilities Commission or the State Energy Resources Conservation and Development Commission to obtain energy or water supply and consumption information pursuant to the powers granted to them under the Public Utilities Code or the Public Resources Code and other applicable state laws.
(k)This chapter shall not be construed to alter the authority of a government entity that owns an electronic device to compel an employee who is authorized to possess the device to return the device to the government entitys possession.
SEC. 5.Section 4.5 of this bill incorporates amendments to Section 1546.1 of the Penal Code proposed by both this bill and Senate Bill 1121. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, but this bill becomes operative first, (2) each bill amends Section 1546.1 of the Penal Code, and (3) this bill is enacted after Senate Bill 1121, in which case Section 1546.1 of the Penal Code, as amended by Section 4 of this bill, shall remain operative only until the operative date of Senate Bill 1121, at which time Section 4.5 of this bill shall become operative.
SEC. 5.SEC. 6.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for government entities to more effectively utilize pen registers and trap and trace devices when engaging in vital law enforcement activities, it is necessary for this bill to take immediate effect.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.54 is added to the Penal Code, to read:638.54.(a)Except as otherwise provided in this section, a government entity that obtains information pursuant to Section 638.52, or obtains information pursuant to oral authorization pursuant to Section 638.53, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the order a notice that informs the recipient that information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the order or a written statement setting forth facts giving rise to the emergency. The notice shall be provided no later than 30 days after the termination of the period of the order, any extensions, or an emergency request.
(b)(1)Prior to the expiration of the 30-day period specified in subdivision (a), the government entity may submit a request request, supported by a sworn affidavit affidavit, for an order delaying unsealing of the order and notification and prohibiting the person owning or leasing the line to which the pen register or trap and trace device is attached from disclosing the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or any other person. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the order or emergency authorization a document that includes the information described in subdivision (a) and a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual. The notice shall be provided no later than three days after the expiration of the period of delay of the notification.
(c)If there is no identified target of an order or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request Justice, no later than three days after the termination of the period of the order, any extensions, or an emergency request, all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon department, no later than three days after the expiration of the period of delay of the notification notification, all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)For the purposes of this section, adverse result has the meaning set forth in subdivision (a) of Section 1546.
SEC. 3.Section 638.55 is added to the Penal Code, immediately following Section 638.54, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 4.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
SEC. 5.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for government entities to more effectively utilize pen registers and trap and trace devices when engaging in vital law enforcement activities, it is necessary for this bill to take immediate effect.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.54 is added to the Penal Code, to read:638.54.(a)Except as otherwise provided in this section, a government entity that obtains information pursuant to Section 638.52, or obtains information pursuant to oral authorization pursuant to Section 638.53, shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the order a notice that informs the recipient that information about the recipient has been compelled or requested and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the order or a written statement setting forth facts giving rise to the emergency. The notice shall be provided no later than 30 days after the termination of the period of the order, any extensions, or emergency request.
(b)(1)Prior to the expiration of the 30-day period specified in subdivision (a), the government entity may submit a request supported by a sworn affidavit for an order delaying unsealing of the order and notification and prohibiting the person owning or leasing the line to which the pen register or trap and trace device is attached from disclosing the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or any other person. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days.
(2)The court may grant extensions of the delay of up to 90 days each on the same grounds as provided in paragraph (1).
(3)Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the order or emergency authorization a document that includes the information described in subdivision (a) and a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the courts determination to grant a delay in notifying the individual.
(c)If there is no identified target of an order or emergency request at the time of its issuance, the government entity shall submit to the Department of Justice within three days of the execution of the warrant or issuance of the request all of the information required in subdivision (a). If an order delaying notice is obtained pursuant to subdivision (b), the government entity shall submit to the department upon the expiration of the period of delay of the notification all of the information required in paragraph (3) of subdivision (b). The department shall publish all those reports on its Internet Web site within 90 days of receipt. The department may redact names or other personal identifying information from the reports.
(d)For the purposes of this section, adverse result has the meaning set forth in subdivision (a) of Section 1546.
SEC. 2.SEC. 3.Section 638.55 is added to the Penal Code, immediately following Section 638.53 638.54, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 3.SEC. 4.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
SEC. 5.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order for government entities to more effectively utilize pen registers and trap and trace devices when engaging in vital law enforcement activities, it is necessary for this bill to take immediate effect.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 magistrate who issued the order, or a judge of the superior court, the order, including any extensions, expires, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, attached not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, unless or until otherwise ordered by the magistrate or a judge of the superior court, or for compliance with Sections 1054.1 and 1054.7. person.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 638.55 is added to the Penal Code, immediately following Section 638.53, to read:638.55.(a)Any person in a trial, hearing, or proceeding may move to suppress wire or electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5.
(b)The Attorney General may commence a civil action to compel any government entity to comply with the provisions of this chapter.
(c)An individual whose information is targeted by a warrant, order, or other legal process that is not in compliance with this chapter, the California Constitution, or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, the California Constitution, or the United States Constitution.
SEC. 2.SEC. 3.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Sections 638.50 to 638.53, inclusive, and subject to subdivision (d). Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(8)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
(a)A peace officer may make an application to a magistrate 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. The application shall be in writing under oath or equivalent affirmation, and shall include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. 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 to be obtained by the pen register or trap and trace device relates.
(b)The magistrate shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if he or she finds that the information likely to be obtained by the installation and use of a pen register or a trap and trace device is relevant to an ongoing investigation and that there is probable cause to believe that the pen register or trap and trace device will lead to any of the following:
(1)Recovery of stolen or embezzled property.
(2)Property or things used as the means of committing a felony.
(3)Property or things in the possession of a person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)Evidence that tends to show a felony has been committed, or tends to show that a particular person has committed or is committing a felony.
(5)Evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)The location of a person who is unlawfully restrained or reasonably believed to be a witness in a criminal investigation or for whose arrest there is probable cause.
(7)Evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(8)Evidence that does any of the following:
(A)Tends to show that a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, has been committed or is being committed.
(B)Tends to show that a particular person has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(C)Will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
(c)Information acquired solely pursuant to the authority for a pen register or a trap and trace device shall not include any information that may disclose the physical location of the subscriber, except to the extent that the location may be determined from the telephone number. Upon the request of the person seeking the pen register or trap and trace device, the magistrate may seal portions of the application pursuant to People v. Hobbs (1994) 7 Cal.4th 948, and Sections 1040, 1041, and 1042 of the Evidence Code.
(d)An order issued pursuant to subdivision (b) shall specify all of the following:
(1)The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
(2)The identity, if known, of the person who is the subject of the criminal investigation.
(3)The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
(4)A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
(5)The order shall direct, if the applicant has requested, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device.
(e)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 60 days.
(f)Extensions of the original order may be granted upon a new application for an order under subdivisions (a) and (b) if the officer shows that there is a continued probable cause that the information or items sought under this subdivision are likely to be obtained under the extension. The period of an extension shall not exceed 60 days.
(g)An order or extension 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 magistrate who issued the order, or a judge of the superior court, and that the person owning or leasing the line to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, unless or until otherwise ordered by the magistrate or a judge of the superior court, or for compliance with Sections 1054.1 and 1054.7.
(h)Upon the presentation of an order, entered under subdivisions (b) or (f), by a peace officer authorized to install and use a pen register, a provider of wire or electronic communication service, landlord, custodian, or other person shall immediately provide the peace officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the assistance is directed by the order.
(i)Upon the request of a peace officer authorized to receive the results of a trap and trace device, a provider of a wire or electronic communication service, landlord, custodian, or other person shall immediately install the device on the appropriate line and provide the peace officer all information, facilities, and technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the services provided to the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by the order.
(j)A provider of a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to this section shall be reasonably compensated by the requesting peace officers law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
(j)
(k)Unless otherwise ordered by the magistrate, the results of the pen register or trap and trace device shall be provided to the peace officer at reasonable intervals during regular business hours for the duration of the order.
(k)
(l)The magistrate, before issuing the order pursuant to subdivision (b), may examine on oath the person seeking the pen register or the trap and trace device, and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the parties making them.
SEC. 2.Section 1546.1 of the Penal Code is amended to read:1546.1.(a)Except as provided in this section, a government entity shall not do any of the following:
(1)Compel the production of or access to electronic communication information from a service provider.
(2)Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
(3)Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.
(b)A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)Pursuant to an order for electronic reader records issued pursuant to Section 1798.90 of the Civil Code.
(4)Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.
(5)Pursuant to an order for a pen register or trap and trace device, or both, issued pursuant to Sections 638.50 to 638.53, inclusive, and subject to subdivision (d).
(c)A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1)Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2)Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3)With the specific consent of the authorized possessor of the device.
(4)With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5)If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(6)If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device.
(7)Except where prohibited by state or federal law, if the device is seized from an inmates possession or found in an area of a correctional facility under the jurisdiction of the Department of Corrections and Rehabilitation where inmates have access and the device is not in the possession of an individual and the device is not known or believed to be the possession of an authorized visitor. Nothing in this paragraph shall be construed to supersede or override Section 4576.
(d)Any warrant for electronic information shall comply with the following:
(1)The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought.
(2)The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.
(3)The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.
(e)When issuing any warrant or order for electronic information, or upon the petition from the target or recipient of the warrant or order, a court may, at its discretion, do any or all of the following:
(1)Appoint a special master, as described in subdivision (d) of Section 1524, charged with ensuring that only information necessary to achieve the objective of the warrant or order is produced or accessed.
(2)Require that any information obtained through the execution of the warrant or order that is unrelated to the objective of the warrant be destroyed as soon as feasible after the termination of the current investigation and any related investigations or proceedings.
(f)A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law.
(g)If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or more of the following circumstances apply:
(1)The entity has or obtains the specific consent of the sender or recipient of the electronic communications about which information was disclosed.
(2)The entity obtains a court order authorizing the retention of the information. A court shall issue a retention order upon a finding that the conditions justifying the initial voluntary disclosure persist, in which case the court shall authorize the retention of the information only for so long as those conditions persist, or there is probable cause to believe that the information constitutes evidence that a crime has been committed.
(3)The entity reasonably believes that the information relates to child pornography and the information is retained as part of a multiagency database used in the investigation of child pornography and related crimes.
(h)If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the entity shall, within three days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency, and if applicable, a request supported by a sworn affidavit for an order delaying notification under paragraph (1) of subdivision (b) of Section 1546.2. The court shall promptly rule on the application or motion and shall order the immediate destruction of all information obtained, and immediate notification pursuant to subdivision (a) of Section 1546.2 if such notice has not already been given, upon a finding that the facts did not give rise to an emergency or upon rejecting the warrant or order application on any other ground.
(i)This section does not limit the authority of a government entity to use an administrative, grand jury, trial, or civil discovery subpoena to do any of the following:
(1)Require an originator, addressee, or intended recipient of an electronic communication to disclose any electronic communication information associated with that communication.
(2)Require an entity that provides electronic communications services to its officers, directors, employees, or agents for the purpose of carrying out their duties, to disclose electronic communication information associated with an electronic communication to or from an officer, director, employee, or agent of the entity.
(3)Require a service provider to provide subscriber information.
|
Date
|
Status
|
|---|---|
| May 27, 2016 | Read third time. Urgency clause adopted. Passed. Ordered to the Senate. (Ayes 72. Noes 0. Page 4953.). |
| Sep 8, 2016 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 30, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 80. Noes 0. Page 6437.). |
| Aug 30, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Aug 25, 2016 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 28 pursuant to Assembly Rule 77. |
| Aug 23, 2016 | Read third time. Urgency clause adopted. Passed. Ordered to the Assembly. (Ayes 39. Noes 0. Page 5309.). |
| Aug 23, 2016 | Read third time. Urgency clause adopted. Passed. Ordered to the Assembly. |
| Aug 22, 2016 | Read second time. Ordered to third reading. |
| Aug 19, 2016 | Read third time and amended. Ordered to second reading. |
| Aug 8, 2016 | Ordered to third reading. |
| Aug 8, 2016 | From Consent Calendar. |
| Aug 2, 2016 | Read second time. Ordered to Consent Calendar. |
| Aug 1, 2016 | From committee: Be placed on second reading file pursuant to Senate Rule 28.8 and ordered to consent calendar. |
| Aug 1, 2016 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jun 29, 2016 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (June 28). Re-referred to Com. on APPR. |
| Jun 9, 2016 | Referred to Com. on PUB. S. |
| Feb 11, 2016 | Read first time. To print. |
| May 27, 2016 | Read third time. Urgency clause adopted. Passed. Ordered to the Senate. |
| May 27, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 23, 2016 | Read third time and amended. Ordered to third reading. (Page 4887.) |
| May 23, 2016 | Read third time and amended. Ordered to third reading. |
| May 12, 2016 | Ordered to third reading. |
| May 12, 2016 | From Consent Calendar. |
| May 5, 2016 | Read second time. Ordered to Consent Calendar. |
| May 4, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 20. Noes 0.) (May 4). |
| Apr 20, 2016 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 11. Noes 0.) (April 19). Re-referred to Com. on APPR. |
| Apr 6, 2016 | Re-referred to Com. on P. & C.P. |
| Apr 5, 2016 | Read second time and amended. |
| Apr 4, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on P. & C.P. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (March 29). |
| Mar 15, 2016 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Feb 25, 2016 | Referred to Coms. on PUB. S. and P. & C.P. |
| Feb 12, 2016 | From printer. May be heard in committee March 13. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 30, 2016 | AB 1924 LOW Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 23, 2016 | Assembly 3rd Reading AB1924 Low By Leno Urgency Clause | Senate Floor |
Passed |
|
| Jun 28, 2016 | Do pass, but first be re-referred to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Public Safety |
Passed |
|
| May 27, 2016 | AB 1924 LOW Third Reading Urgency | Assembly Floor |
Passed |
|
| May 4, 2016 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 19, 2016 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Privacy and Consumer Protection |
Passed |
|
| Mar 29, 2016 | Do pass as amended, and be re-referred to the Committee on [Privacy and Consumer Protection] with recommendation: To Consent Calendar | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Association For Los Angeles Deputy Sheriffs | ** Support | May 27, 2016 |
| Association of Deputy District Attorneys | ** Support | May 27, 2016 |
| California Civil Liberties Advocacy | ** Support | Aug 23, 2016 |
| California District Attorneys Association | ** Support | Aug 23, 2016 |
| California Police Chiefs Association | ** Support | Aug 23, 2016 |
| California State Sheriffs' Association | ** Support | Aug 23, 2016 |
| Los Angeles County District Attorney'S Office | ** Support | Aug 23, 2016 |
| Los Angeles County Sheriff'S Department | ** Support | Aug 23, 2016 |
| Los Angeles County Sheriff's Office | ** Support | May 27, 2016 |
| Los Angeles District Attorney's Office | ** Support | May 27, 2016 |
| Los Angeles Police Protective League | ** Support | May 27, 2016 |
| Los Angeles Professional Peace Officers Association | ** Support | Aug 23, 2016 |
| Professional Peace Officers Association | ** Support | May 27, 2016 |
| Riverside Sheriffs' Association | ** Support | May 27, 2016 |
| San Diego County District Attorney | ** Support | Aug 23, 2016 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 1924
Author:(Low)
As Amended Ver: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:
- 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.
- Double join this bill with SB 1121 (Leno) of the current legislative session to prevent chaptering out issues.
EXISTING FEDERAL LAW:
- 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.
- 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.).
- 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.
- 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 of any wire or electronic communications.
- Whoever knowingly violates the prohibition shall be fined under this title or imprisoned not more than one year, or both.
- 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:
- 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.
- 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.
- 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:
- 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.
- Ensured that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarified that courts may suppress any information illegally obtained from a pen register or trap trace device.
- 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.
- 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
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 1924
:
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
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.
Senate Floor Amendments of 8/19/16 clarify that the bill does not limit the existing authority of the Public Utilities Commission or State Energy Resources and Conservation and Development Commission to obtain energy or water supply and consumption information under existing law and address potential chaptering problems between this bill and SB 1121 (Leno).
Existing law:
- 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 be searched and the persons or things to be seized. (U.S. Constitution 4th Amend.; California Constitution art. I, § 13.)
- 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.)
- 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.)
- 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).)
- 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 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).)
- 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).)
- 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).)
- 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).)
- Provides that an order issued for installation of a pen 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).)
- 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 of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. (18 USCS § 3121c).)
- 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.)
- 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.)
- 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.)
- Provides that a search warrant may be issued only upon any of the specified grounds: (Penal Code § 1524(a).)
- 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. (Penal Code, § 1525.)
- 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).)
- 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))
- 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)
- 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:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
- 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 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: Fiscal Com.: Local:
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
Los Angeles Professional Peace Officers Association
San Diego County District Attorney
OPPOSITION: (Verified 8/19/16)
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, Melendez, O'Donnell
8/22/16 20:37:43
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 1924 |
THIRD READING
Bill No: AB 1924
Amended: 8/1/16 in Senate
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.
Existing law:
- 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 be searched and the persons or things to be seized. (U.S. Constitution 4th Amend.; California Constitution art. I, § 13.)
- 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.)
- 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.)
- 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).)
- 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 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).)
- 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).)
- 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).)
- 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).)
- Provides that an order issued for installation of a pen 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).)
- 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 of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. (18 USCS § 3121c).)
- 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.)
- 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.)
- 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.)
- Provides that a search warrant may be issued only upon any of the specified grounds: (Penal Code § 1524(a).)
- 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. (Penal Code, § 1525.)
- 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).)
- 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))
- 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)
- 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:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
- 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 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.: Yes Local: No
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
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, Melendez, O'Donnell
Prepared by: Mary Kennedy / PUB. S. /
8/9/16 9:45:51
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 1924 |
CONSENT
Bill No: AB 1924
Amended: 8/1/16 in Senate
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
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.
Existing law:
- 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 be searched and the persons or things to be seized. (U.S. Constitution 4th Amend.; California Constitution art. I, § 13.)
- 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.)
- 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.)
- 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).)
- 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 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).)
- 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).)
- 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).)
- 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).)
- Provides that an order issued for installation of a pen 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).)
- 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 of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. (18 USCS § 3121c).)
- 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.)
- 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.)
- 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.)
- Provides that a search warrant may be issued only upon any of the specified grounds: (Penal Code § 1524(a).)
- 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. (Penal Code, § 1525.)
- 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).)
- 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))
- 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)
- 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:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
- 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 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.: Yes Local: No
Los Angeles County Sheriff’s Department (co-source)
Los Angeles County District Attorney’s Office (co-source)
California Civil Liberties Advocacy
California State Sheriffs’ Association
California Police Chiefs Association
California District Attorneys Association
San Diego County District Attorney
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, Melendez, O'Donnell
Prepared by: Mary Kennedy / PUB. S. /
8/8/16 10:17:40
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1924 Hearing Date: June 28, 2016
Author: | Low | ||
Version: | May 23, 2016 | ||
Urgency: | Yes | Fiscal: | Yes |
Consultant: | MK | ||
Subject: Pen Registers: Trap and Trace Devices: Orders
HISTORY
Source: Los Angeles County Sheriff’s Department
Prior Legislation: AB 929 (Chau) – Ch. 204, Stats. 2015
Support: California Civil Liberties Advocacy; California State Sheriffs’ Association; California Police Chiefs Association; California District Attorneys Association; San Diego County District Attorney; Los Angeles District Attorney’s Office
Opposition:
Assembly Floor Vote: 72 - 0
PURPOSE
The purpose of this bill is to provide 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.
Existing Constitutional law 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. (U.S. Constitution 4th Amend.; California Constitution art. I, § 13.)
Existing federal law 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.)
- 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.
- A government agency authorized to install and use a pen register or trap and trace device under this chapter (18 USCS §§ 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 of any wire or electronic communications. (18 USCS § 3121 (c).)
- Whoever knowingly violates the prohibition shall be fined under this title or imprisoned not more than one year, or both. . (18 USCS § 3121 (a) & (b).)
Existing federal law 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.)
Existing federal law 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).)
Existing federal law 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 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).)
Existing federal law 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).)
Existing federal law 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).)
Existing federal law states 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).)
Existing federal law provides that an order issued for installation of a pen 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).)
Existing federal law 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 of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. (18 USCS § 3121c).)
Existing federal law 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.)
Existing federal law 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.)
Existing law 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.)
Existing law provides that a search warrant may be issued upon any of the following grounds:
1) When the property was stolen or embezzled;
2) When the property or things were used as the means of committing a felony;
3) When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered;
4) When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony;
5) When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring;
6) When there is a warrant to arrest a person;
7) When a provider of electronic communication service or remote computing service
has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery;
8) When the property to be seized includes evidence of a violation of specified Labor Code sections;
9) When the property to be seized includes a firearm or deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
10) When the property to be seized includes a firearm or deadly weapon owned by a person apprehended because of his or her mental condition;
11) When the property to be seized is a firearm in possession of a person prohibited under the family code;
12) When the information to be received from the use of a tracking device under shows a specified violation of the Fish and Game Code or Public Resources Code;
13) When a sample of blood would show evidence of a DUI; or,
14) Starting January 1, 2016, when the property to be seized is a firearm owned by a person subject to a gun violence restraining order. (Penal Code § 1524(a).)
Existing law 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. (Penal Code, § 1525.)
Existing law 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).)
Existing law generally prohibits 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))
Existing law 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)
Existing law, as part of the Electronic Communications Privacy ACT (ECPA), specifies 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 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.
This bill ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
This bill clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Federal law allows law enforcement agencies to use pen register and trap and trace devices, but they must obtain a court order from a judge prior to the installation of the device. However, during an emergency situation, they may use these devices without a court order if they obtain the court order within 48 hours of the use of the device. Law enforcement agencies must demonstrate that there is
reasonable suspicion that the use of the device is relevant to an ongoing criminal investigation and will lead to obtaining evidence of a crime for a judge to authorize the use.
Last year AB 929 (Chau)… authorized California law enforcement officers to apply for the installation of a pen register and trap and trace device as well as an emergency oral pen register and trap and trace device under state, not federal law…
Last year Governor Brown also signed the Electronic Communication Privacy Act (SB 178) into law on October 8, 2015. The ECPA adds Chapter 3.6 to the Penal Code. Absent a statutory exemption, Penal Code section 15471(a) will preclude a government entity from compelling the production of our access to electronic communication information from a service provider, compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device, or accessing electronic device information by means of physical interaction or electronic communication with the electronic device.
A government entity must obtain a search warrant issued pursuant to Chapter 3 (commencing with Penal Code section 1523) and subject to the requirement of Penal Code section 1546.1(d) to compel the production of or access to electronic communication information from a service provider, or compel production of or access to electronic device information from any person or entity other than the authorized possessor of the device.
***
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 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.
2. Pen Registers and Trap and Trace Devices
Federal law allows law enforcement agencies to use pen register and trap and trace devices, but they must obtain a court order from a judge prior to the installation of the device. However, during an emergency situation, law enforcement agencies may use these devices without a court order if they obtain the court order within 48 hours of the use of the device. Law enforcement agencies must demonstrate that there is reasonable suspicion that the use of the device is relevant to an ongoing criminal investigation and will lead to obtaining evidence of a crime for a judge to authorize the use.
Though federal law authorizes states and local law enforcement officers to use pen register and trap and trace devices by obtaining a court order first, it does not allow them to obtain an emergency order unless there is a state statute authorizing and creating a process for states and local law enforcement officers to do so.
Pen registers and track and trace devices generally track incoming and outgoing telephone calls. They are often utilized by law enforcement to track which people in an investigation are communicating with one another and at what times. Unlike a wiretap authorization, pen registers and track and trace devices do not provide law enforcement with the content of the messages which are transmitted. Wiretap authorizations are therefore subject to a much higher standard of scrutiny. Under federal law, these authorizations can be granted on a reasonable suspicion standard, while search warrants are subject to a higher standard of probable cause.
AB 929 (Chau), Chapter 204, Statutes of 2015 authorized state and local law enforcement to use pen register and trap and trace devices under state law, and permitted the issuance of emergency pen registers and trap and trace devices. Under this legislation, the authorization for the use of a trap and trace device or a pen register was for 60 days from the date of issuance, with extensions of up to 60 days. However, the governor signed AB 929 prior to signing the ECPA and as a result the authorization was chaptered out by the ECPA's 10-day authorizations.
3. Electronic Communications Privacy Act (ECPA)
Last year the legislature passed SB 178 (Leno), Chapter 651, Statutes of 2015, which prohibited a government entity from compelling the production of, or access to, electronic-communication information or electronic-device information without a search warrant or wiretap order, except under specified emergency situations. Specifically, this new law prohibits a government entity from:
a) Compelling the production, of or access to, electronic communication information from a service provider;
b) Compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; and,
c) Accessing electronic device information by means of physical interaction or electronic communication with the device, although voluntary disclosure to a government entity is permitted.
The ECPA also permits a government entity to compel the production of, or access to, electronic communication information subject from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to existing state law, as specified.
4. Allowance of Pen Registers and Trap Devices
This bill makes an exception to the ECPA, allowing pen registers and trap or trace devices to be installed for 60 days. It also places notice requirements on the entity that obtains the information.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 1924
Author:(Low)
As Amended Ver:May 23, 2016
2/3 vote. Urgency
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago | |
Privacy | 11-0 | Chau, Wilk, Baker, Calderon, Chang, Cooper, Dababneh, Gatto, Gordon, Low, Olsen | |
Appropriations | 20-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, McCarty, Holden, Jones, Obernolte, Quirk, Santiago, Wagner, Weber, Wood |
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. Specifically, this bill:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
- 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.
- Specifies that this act is an urgency statute.
EXISTING FEDERAL LAW:
- 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.
- 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.).
- 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.
- 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 of any wire or electronic communications.
- Whoever knowingly violates the prohibition shall be fined under this title or imprisoned not more than one year, or both.
- 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:
- 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.
- 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.
- 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.
FISCAL EFFECT: According to the Assembly Appropriations Committee, minor costs to the Department of Justice if the Attorney General chooses to take civil action to compel any government entity to suppress information obtained improperly.
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 EPCA 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: 0003045
ASSEMBLY THIRD READING
ATR Bill Id:AB 1924
Author:(Bigelow and Low)
As Amended Ver:April 5, 2016
2/3 vote
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago | |
Privacy | 11-0 | Chau, Wilk, Baker, Calderon, Chang, Cooper, Dababneh, Gatto, Gordon, Low, Olsen | |
Appropriations | 20-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, McCarty, Holden, Jones, Obernolte, Quirk, Santiago, Wagner, Weber, Wood |
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. Specifically, this bill:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
EXISTING FEDERAL LAW:
- 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.
- 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.).
- 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.
- 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 of any wire or electronic communications.
- Whoever knowingly violates the prohibition shall be fined under this title or imprisoned not more than one year, or both.
- 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:
- 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.
- 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.
- 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.
FISCAL EFFECT: According to the Assembly Appropriations Committee, minor costs to the Department of Justice if the Attorney General chooses to take civil action to compel any government entity to suppress information obtained improperly.
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 EPCA 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: 0002924
Date of Hearing: May 4, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
ABPCA Bill Id:AB 1924
Author:(Bigelow) – As Amended Ver:April 5, 2016
Policy Committee: | Public Safety | Vote: | 7 - 0 |
Privacy and Consumer Protection | 11 - 0 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill clarifies that law enforcement agencies have the authority to seek and use and order for a pen register/trap and trace-device, which are telephone surveillance devices used to record incoming and outgoing phone numbers, for up to 60 days instead of 10 days, and provides for a suppression remedy as well as reasonable compensation to private companies and individuals that assist in those efforts.
FISCAL EFFECT:
Minor costs to the Department of Justice if the Attorney General chooses to take civil action to compel any government entity to suppress information obtained improperly.
COMMENTS:
Background/Purpose. Federal law allows law enforcement agencies to use pen register and trap and trace devices, but they must obtain a court order from a judge prior to the installation of the device. However, during an emergency situation, law enforcement agencies may use these devices without a court order if they obtain the court order within 48 hours of the use of the device. Law enforcement agencies must demonstrate that there is reasonable suspicion that the use of the device is relevant to an ongoing criminal investigation and will lead to obtaining evidence of a crime for a judge to authorize the use.
AB 929 (Chau), Chapter 202/2015, authorized California law enforcement officers to apply for the installation of a pen register and trap and trace device as well as an emergency oral pen register and trap and trace device under state, not federal, law.
SB 178 (Leno), Chapter 651/2015, created the California Electronic Communications Privacy Act (CECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider.
The ECPA requires law enforcement to seek a search warrant in order to obtain a pen register; however, these warrants are valid for 10 days, whereas pen register/trap and trap device orders are valid for 60 days under federal law and AB 929.
This bill is intended to address a conflict between recently amended statutes that interfere with law enforcement agencies' ability to seek a 60-day pen register/trap and trace-device.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
ABPCA Bill Id:AB 1924 (
Author:Bigelow and Low) – As Amended Ver:April 5, 2016
SUBJECT: Pen registers: track and trace devices: orders
SUMMARY: Clarifies that law enforcement agencies have the authority to seek and use a pen register/trap-and-trace order for up to 60 days instead of 10 days, and provides for a suppression remedy as well as reasonable compensation to private companies and individuals that assist in those efforts. Specifically, this bill:
- Authorizes a government entity to compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to an order for a pen register or trap and trace device, or both, as specified and subject to existing requirements for warrants for electronic information.
- Authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device pursuant to an order for a pen register or trap and trace device, or both, as specified and subject to existing requirements for warrants for electronic information.
- Clarifies that an order or extension order authorizing or approving the installation of a pen register/trap-and-trace device be sealed until the order expires, instead of upon the order of the issuing magistrate or judge.
- Requires that a wire or electronic communication service, landlord, custodian, or other person who provides facilities or technical assistance pursuant to a lawful pen register or trap and trace order shall be reasonably compensated by the requesting peace officer’s law enforcement agency for the reasonable expenses incurred in providing the facilities and assistance.
- Explicitly authorizes a motion to suppress wire or electronic information obtained or retained improperly, as provided.
EXISTING LAW:
- Authorizes a peace officer to apply to a magistrate 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. The application must be in writing under oath or equivalent affirmation, and must include the identity of the peace officer making the application and the identity of the law enforcement agency conducting the investigation. The applicant must certify that the information likely to be obtained is relevant to an ongoing criminal investigation and must include a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates. (Penal Code (PC) Section 638.52)
- Authorizes a government entity to compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under specified circumstances. (PC 1546.1(b))
FISCAL EFFECT: Unknown
COMMENTS:
- Purpose of this bill. This bill is intended to address a conflict between recently amended statutes that would interfere with law enforcement agencies' ability to seek a 60-day pen register/trap-and trace-device, which are telephone surveillance devices used to record incoming and outgoing phone numbers. This bill is sponsored by the Los Angeles County District Attorney’s Office and Los Angeles County Sheriff’s Department.
- Author's statement. According to the author, "Federal law allows law enforcement agencies to use pen register and trap and trace devices, but they must obtain a court order from a judge prior to the installation of the device. However, during an emergency situation, they may use these devices without a court order if they obtain the court order within 48 hours of the use of the device. Law enforcement agencies must demonstrate that there is reasonable suspicion that the use of the device is relevant to an ongoing criminal investigation and will lead to obtaining evidence of a crime for a judge to authorize the use."
"Last year AB 929 (Chau) was signed into law by the governor on August 13, 2015....AB 929 authorized California law enforcement officers to apply for the installation of a pen register and trap and trace device as well as an emergency oral pen register and trap and trace device under state, not federal, law…AB 929 was necessary because while [federal law] authorizes the installation and use of a pen register/trap and trace device for 48 hours without a court order in an emergency situation, the absence of an enabling statute in California precluded local law enforcement agencies from lawfully obtaining emergency pen register/trap and trace device orders."
"Last year Governor Brown also signed the Electronic Communication Privacy Act [ECPA] into law on October 8, 2015…Absent a statutory exemption, [ECPA] will preclude a government entity from compelling the production of or access to electronic communication information from a service provider, compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device, or accessing electronic device information by means of physical interaction or electronic communication with the electronic device…"
"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 10 days, whereas pen register/trap and trap device orders are valid for 60 days under federal law and AB 929… 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. "
- Pen registers/trap and trace devices. Pen registers/trap and trace devices are used by law enforcement for telephone surveillance to record incoming and outgoing phone numbers from a tapped line. Historically, "pen registers" are used to record outgoing numbers from a particular telephone line, while "trap and trace" devices allow them to record the numbers that call in. The two terms are generally used together because the two technologies are almost always requested together. For purposes of simplicity, they will be jointly referred to here as a "pen/trap" device. A pen/trap order is only for the capture of incoming and outgoing phone numbers, and not to record audio or text messages, or to obtain real-time geophysical data on a cellphone.
- This bill in practice. As noted above, federal law gives law enforcement agencies the ability to use a pen/trap device without a court order in an emergency situation, as long as they obtain a court order within 48 hours. However, the lack of a state enabling statute was viewed by law enforcement as a barrier to use for emergency orders. In 2015, AB 929 (Chau) explicitly authorized and enabled law enforcement access to use emergency pen/trap devices, while raising the standard of evidence required from reasonable suspicion to probable cause.
At the same time, California also passed ECPA, which codified and expanded on existing case law to generally require law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider.
The primary concern raised by the authors and sponsors is that ECPA's general warrant requirement conflicts with the pen/trap provisions – specifically, ECPA would only allow for a 10-day pen/trap order, rather than the 60-day order traditionally granted to pen/trap devices. This bill would clarify that authority by providing an explicit reference to pen/trap orders to the code section dealing with surveillance of electronic information last revised by SB 178, which would have the effect of again allowing orders to extend for 60 days.
The authors also point out that SB 178 and AB 929 of 2015 inadvertently deleted a provision for written pen/trap orders providing reasonable compensation to private individuals and companies that provide facilities and technical assistance to law enforcement when placing and operating a pen/trap device – this bill would restore that provision, as well as provide a suppression remedy for evidence obtained improperly similar to that found in ECPA. - Two-thirds vote requirement. The California Constitution provides for a "Right to Truth-in-Evidence" as a result of the passage of the Victim's Bill of Rights Act (California Proposition 8, 1982). That measure was intended to ensure that a state court did not unnecessarily exclude evidence relevant to a criminal prosecution, even if gathered in a manner that violates the rights of the defendant, although the U.S. Constitution may still require exclusion in some cases. Any exception to this right requires a two-thirds vote by both the Assembly and the Senate.
Because this bill's suppression remedy would exclude evidence obtained or retained in violation of this bill's provisions, it will require a two-thirds vote for passage on the Assembly Floor. - Related legislation. SB 1121 (Leno) would authorize a government entity to access electronic device information by means of physical interaction or electronic communication with the device to access geolocation information in response to a 911 call. This bill is currently pending in the Senate Public Safety Committee.
- Previous legislation. AB 929 (Chau), Chapter 204, Statutes of 2015, authorizes state and local law enforcement to use pen register and trap and trace devices under state law, and permits the issuance of emergency pen registers and trap and trace devices.
SB 178 (Leno), Chapter 651, Statutes of 2015, creates the California Electronic Communications Privacy Act, which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider.
- Double-referral. This bill was double-referred to the Assembly Public Safety Committee, where it was heard on March 29, 2016, and voted out on a 7-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County District Attorney’s Office (co-sponsor)
Los Angeles County Sheriff’s Department (co-sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs’ Association
Los Angeles Police Protective League
Riverside Sheriffs’ Association
Opposition
None on file.
Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200
Date of Hearing: March 29, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON
, Sr., Chair
ABPCA Bill Id:
Author:() – As Ver:
As Proposed to Amended in Committee
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. Specifically, this bill:
- 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.
- Ensures that telecommunication providers are compensated for their work when complying with a court order for a pen register or trap and trace device.
- Clarifies that courts may suppress any information illegally obtained from a pen register or trap trace device.
EXISTING FEDERAL LAW:
- 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. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.)
- 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 USCS § 3123] or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). (18 USCS § 3121.)
- 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. (18 USCS § 3121, subds. (a) & (b).)
- A government agency authorized to install and use a pen register or trap and trace device under this chapter (18 USCS §§ 3121 et seq.0 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 of any wire or electronic communications. (18 USCS § 3121, subd. (c).)
- Whoever knowingly violates the prohibition shall be fined under this title or imprisoned not more than one year, or both.
- 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. (18 USCS § 3121, subds. (a) & (b).)
- 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.)
- 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, subd. (a)(1).)
- 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 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, subd. (a)(2).)
- 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: (18 USCS § 3121, subd. (a)(3).)
- 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.
- Any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;
- 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, subd. (a)(3).)
- States 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, subd. (a)(3).)
- An order issued for installation of a pen register or track and trace device shall include: (18 USCS § 3121, subd. (b).)
- 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.
- 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;
- 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. (18 USCS § 3121, subd.(c).)
- Provides that 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.
- States that 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 of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
- Provides that 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.
- 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: (18 USCS § 3125.)
- 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;
- an emergency situation exists that involves;
- 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.)
EXISTING STATE LAW:
- 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. (Pen. Code, § 1523.)
- States that a search warrant may be issued upon any of the following grounds:
- When the property was stolen or embezzled.
- When the property or things were used as the means of committing a felony.
- When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
- When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
- When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring.
- When there is a warrant to arrest a person.
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
- When a provider of electronic communication service or remote computing service has records or evidence showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
- When the property or things to be seized include an item or any evidence that tends to show a violation of the Labor Code, as specified.
- When the property or things to be seized include a firearm or any other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault.
- When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
- When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms under specified provisions of the Family Code.
- When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony or a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code.
- When a sample of the blood of a person constitutes evidence that tends to show a violation of misdemeanor driving under the influence and the person from whom the sample is being sought has refused an officer's request to submit to, or has failed to complete, a blood test.
- When the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence re straining order. This final provision does not go into effect until January 1, 2016. (Pen. Code, § 1524, subd. (a).)
- When the property was stolen or embezzled.
- 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. (Pen. Code, § 1525.)
- 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, subd. (a).)
FISCAL EFFECT:
COMMENTS:
- Author's Statement: 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 EPCA 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."
- Pen Registers and Trap and Trace Devices: Federal law allows law enforcement agencies to use pen register and trap and trace devices, but they must obtain a court order from a judge prior to the installation of the device. However, during an emergency situation, law enforcement agencies may use these devices without a court order if they obtain the court order within 48 hours of the use of the device. Law enforcement agencies must demonstrate that there is reasonable suspicion that the use of the device is relevant to an ongoing criminal investigation and will lead to obtaining evidence of a crime for a judge to authorize the use.
Though federal law authorizes states and local law enforcement officers to use pen register and trap and trace devices by obtaining a court order first, it does not allow them to obtain an emergency order unless there is a state statute authorizing and creating a process for states and local law enforcement officers to do so. To date, California does not have a state statute authorizing the use of pen registers or trap and trace devices.
Pen registers and track and trace devices generally track incoming and outgoing telephone calls. They are often utilized by law enforcement to track which people in an investigation are communicating with one another and at what times. Unlike a wiretap authorization, pen registers and track and trace devices do not provide law enforcement with the content of the messages which are transmitted. Wiretap authorizations are therefore subject to a much higher standard of scrutiny. Under federal law, these authorizations can be granted on a reasonable suspicion standard, while search warrants are subject to a higher standard of probable cause.
- AB 929 (Chau): Last year the legislature passed and the governor signed AB 929 (Chau), Chapter 204, Statutes of 2015. AB 929 authorized state and local law enforcement to use pen register and trap and trace devices under state law, and permits the issuance of emergency pen registers and trap and trace devices. Under this legislation, the authorization for the use of a trap and trace device or a pen register was for 60 days from the date of issuance, with extensions of up to 60 days. However, the governor signed AB 929 prior to signing the ECPA and as a result the authorization was chaptered out by the ECPA's 10-day authorizations.
- Electronic Communications Privacy Act (ECPA): Last year the legislature passed SB 178 (Leno), Chapter 651, Statutes of 2015, which prohibited a government entity from compelling the production of, or access to, electronic-communication information or electronic-device information without a search warrant or wiretap order, except under specified emergency situations. Specifically, this new law prohibits a government entity from:
- Compelling the production, of or access to, electronic communication information from a service provider;
- Compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device; and,
- Accessing electronic device information by means of physical interaction or electronic communication with the device, although voluntary disclosure to a government entity is permitted.
The ECPA also permits a government entity to compel the production of, or access to, electronic communication information subject from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device pursuant to a warrant, wiretap order, order for electronic reader records, or subpoena issued pursuant to existing state law, as specified.
- Argument in Support: According to the Los Angeles District Attorney, "Last year AB 929 (Chau) was signed into law by the governor on August 13, 2015. AB 929 authorized California law enforcement officers to apply for the installation of a pen register and trap and trace device as well as an emergency oral pen register and trap and trace device under state, not federal, law.
"A pen register records all numbers called from (outgoing) a particular telephone line. A 'trap and trace device' records what numbers had called a specific telephone, i.e. all incoming phone numbers. Pen registers and trap and trace devices are extremely useful investigative tools. They are used to identify accomplices, for example.
"AB 929 was necessary because federal law requires states to have an enabling statute authorizing the use of a pen register/trap and trace device in emergency situations, in order for local law enforcement agencies to lawfully obtain an emergency pen register/trap and trace device order.
"Last year Governor Brown also signed SB 178 (Leno) the Electronic Communication Privacy Act (ECPA) into law on October 8, 2015. The ECPA adds Chapter 3.6 to the Penal Code. Absent a statutory exemption, ECPA precludes a government entity from compelling the production or access to electronic information from a service provider, compelling the production of or access to electronic device information from any person or entity other than the authorized possessor of the device, or accessing electronic device information by means of physical interaction or electronic communication with the electronic device without a search warrant.
"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 1.5. 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 provides the necessary 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 (as called for in AB 929) rather than 10 days provided for in ECPA and 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 also provides additional privacy protections for Californians by including a language that would allow a court to suppress any information illegally obtained from a pen register or trap trace device.
"AB 1924 still requires 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. We are continuing to work with representatives from the ACLU to draft language that will provide a time frame for law enforcement agencies to provide notice to individuals whose electronic devices were the subject of a court ordered pen register and/or trap and trace device."
- Prior Legislation:
- AB 929 (Chau), Chapter 204, Statutes of 2015, authorized state and local law enforcement to use pen register and trap and trace devices under state law, and permits the issuance of emergency pen registers and trap and trace devices.
- SB 178 (Leno), Chapter 651, Statutes of 2015, which prohibited a government entity from compelling the production of, or access to, electronic-communication information or electronic-device information without a search warrant or wiretap order, except under specified emergency situations.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County Sheriff's Office (co-sponsor)
Los Angeles District Attorney's Office (co-sponsor)
Association for Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California Civil Liberties Advocacy
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles Police Protective League
Professional Peace Officers Association
Riverside Sheriffs' Association
Opposition
None
Analysis Prepared by:
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