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AB-904 Search warrants: tracking devices.(2019-2020)

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Date Published: 03/28/2019 09:00 PM
AB904:v98#DOCUMENT

Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 904


Introduced by Assembly Member Chau

February 20, 2019


An act to amend Section 1534 1546.1 of the Penal Code, relating to search warrants.


LEGISLATIVE COUNSEL'S DIGEST


AB 904, as amended, Chau. Search warrants: tracking devices.
Existing law authorizes a search warrant to be issued upon specified grounds, including that the information to be received from the use of a tracking device constitutes evidence that tends to show that a felony or specified misdemeanors has been committed or is being committed, tends to show that a particular person has committed a felony or those specified misdemeanors, or will assist in locating an individual who has committed or is committing a felony or those specified misdemeanors. Existing law requires a warrant issued pursuant to these provisions to meet specified requirements. Existing law defined defines tracking device for these purposes as any electronic or mechanical device that permits the tracking of the movement of a person or object. Existing law prohibits a government entity from accessing an electronic device except as specifically authorized, including pursuant to a warrant or wiretap order issued by a court.

This bill would specify that a tracking device includes any software that permits the tracking of the movement of a person or object.

This bill would clarify that the prohibition on accessing an electronic device includes the installation of software onto a device.
The bill would also prohibit a court from granting a search warrant to conduct real-time surveillance of a person through an electronic device possessed by that person, except in extraordinary circumstances.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1546.1 of the Penal Code is amended to read:

1546.1.
 (a) (1) Except as provided in this section, a government entity shall not do any of the following:

(1)

(A) Compel the production of or access to electronic communication information from a service provider.

(2)

(B) Compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device.

(3)

(C) 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.
(2) For purposes of this section, accessing electronic device information includes the installation of any software onto an electronic device, including into any software on that device.
(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). (e).
(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). (e).
(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 inmate’s 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) Notwithstanding subdivisions (b) and (c), a warrant or order authorizing the real-time surveillance, including, but not limited to, GPS, audio, or video surveillance, of a person through an electronic device possessed by that person shall only be issued in extraordinary circumstances.

(d)

(e) 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)

(f) 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)

(g) 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)

(h) If a government entity receives electronic communication information voluntarily provided pursuant to subdivision (f), (g), 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)

(i) 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)

(j) 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)

(k) 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)

(l) 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 entity’s possession.

SECTION 1.Section 1534 of the Penal Code is amended to read:
1534.

(a)A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.

(b)(1)A tracking device search warrant issued pursuant to paragraph (12) of subdivision (a) of Section 1524 shall identify the person or property to be tracked and shall specify a reasonable length of time, not to exceed 30 days from the date the warrant is issued, that the device may be used. The court may, for good cause, grant one or more extensions for the time that the device may be used, with each extension lasting for a reasonable length of time, not to exceed 30 days. The search warrant shall command the officer to execute the warrant by installing a tracking device or serving a warrant on a third-party possessor of the tracking data. The officer shall perform any installation authorized by the warrant during the daytime unless the magistrate, for good cause, expressly authorizes installation at another time. Execution of the warrant shall be completed no later than 10 days immediately after the date of issuance. A warrant executed within this 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant shall be void, unless it has been executed.

(2)An officer executing a tracking device search warrant shall not be required to knock and announce their presence before executing the warrant.

(3)No later than 10 calendar days after the use of the tracking device has ended, the officer executing the warrant shall file a return to the warrant.

(4)(A)No later than 10 calendar days after the use of the tracking device has ended, the officer who executed the tracking device warrant shall notify the person who was tracked or whose property was tracked pursuant to subdivision (a) of Section 1546.2.

(B)Notice under this paragraph may be delayed pursuant to subdivision (b) of Section 1546.2.

(5) An officer installing a device authorized by a tracking device search warrant may install and use the device only within California.

(6)As used in this section, “tracking device” means any electronic or mechanical device, or software, that permits the tracking of the movement of a person or object.

(7)As used in this section, “daytime” means the hours between 6 a.m. and 10 p.m. according to local time.

(c)If a duplicate original search warrant has been executed, the peace officer who executed the warrant shall enter the exact time of its execution on its face.

(d)A search warrant may be made returnable before the issuing magistrate or their court.