California Assembly Bill AB452 Amended / Bill

 BILL NUMBER: AB 452AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 25, 2011 INTRODUCED BY Assembly Member Ma FEBRUARY 15, 2011 An act to amend Section 637.7 of the Penal Code, relating to privacy. LEGISLATIVE COUNSEL'S DIGEST F AB 452, as amended, Ma. Electronic tracking devices: invasion of privacy. Existing law prohibits a person or entity from using an electronic tracking device to determine the location or movement of a person. This prohibition does not apply when the owner of a vehicle has consented to the use of the electronic tracking device with respect to the vehicle, or to a law enforcement agency. This bill would recast this provision to prohibit a person or entity from using, attempting to use,  or knowingly employing or engaging a 3rd party to use  or attempt to use  , an electronic tracking device to determine the location or movement of a person without the consent of that person.  This bill would provide that a person who voluntarily uses a device knowing that it is being used to determine his or her location or movement is deemed to have consented to the use of the device.  This bill would additionally provide that this prohibition does not apply to the parent or legal guardian of a minor child or conservator of an incompetent person for purposes of tracking that minor or incompetent person, except as specified. The bill would also provide that this prohibition does not apply to the  provision of commercial services   use of an electronic tracking device by a commercial service provider  , as provided  , only if the provider has given a specified notice regarding the use of the device. The bill would prohibit the provider from selling, distributing, transferring, or releasing any information gathered or collected to any 3rd   party or the person utilizing the service, except as specified  . Existing law defines an electronic tracking device as any device attached to a vehicle or other moveable thing that reveals its location or movement by the transmission of electronic signals. This bill would instead define an electronic tracking device as any device  that permits another person or entity to remotely determine or track the position or movement of a person or object   attached to, placed on, or inserted into, a vehicle, wireless telephone, or other movable thing that reveals its location or movement by the transmission of electronic or radio signals, including, but not limited to, a global positioning system  .  The bill would also prohibit a person from requiring, coercing, or compelling any other individual to consent to undergo the subcutaneous implanting of an electronic tracking device, as specified.  Existing law provides that a violation of these provisions is a misdemeanor, punishable by imprisonment in a county jail for not more than 6 months, by a fine not to exceed $1,000, or both that fine and Fimprisonment. This bill would provide that a violation of these provisions is a misdemeanor, punishable by imprisonment in a county jail for not more than 6 months, by a fine not to exceed $2,500, or by both that fine and imprisonment. This bill would provide that a violation of these provisions by a person who is prohibited by a court order from  contacting, directly or indirectly,  harassing, following, surveilling, or stalking a person protected by that order is punishable by imprisonment in a county jail for not more than one year, by a fine not to exceed $5,000, or by both that fine and imprisonment. By increasing the punishment for a crime, and by creating a new crime, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: F SECTION 1. The Legislature finds and declares that the right to privacy is fundamental to a free and civilized society and that the increasing use of electronic surveillance devices is eroding personal liberty. The Legislature declares that the electronic tracking of a person's location without that person's knowledge and consent violates that person's reasonable expectation of privacy. SEC. 2. Section 637.7 of the Penal Code is amended to read: 637.7. (a) No person or entity in this state shall use  , attempt to use,  or knowingly employ or engage a third party to use  or attempt to use,  an electronic tracking device to determine the location or movement of a person without the consent of that person.  (b) A person is deemed to have consented to the use of an electronic tracking device when he or she voluntarily uses a device that he or she knows is being used to determine his or her location or movement.   (c)   (b)  Subdivision (a) shall not apply to any of the following:  (1)The registered   (1)     The legal  owner, lessor, or lessee of a vehicle who has consented to the use of the electronic tracking device with respect to that vehicle.  (2) The lawful use of an electronic tracking device by a federal, state, or local law enforcement agency.   (2) The use of an electronic tracking device by a federal, state, or local law enforcement agency or individual law enforcement officer, acting in good faith, for a law enforcement purpose.  (3) The use of an electronic tracking device by a parent or legal guardian or person having legal custody of a minor for purposes of tracking that minor, unless there is a court order in place prohibiting the parent, legal guardian, or other person having legal custody of the minor from  contacting, directly or indirectly,  harassing, following, surveilling, or stalking the minor. (4) The use of an electronic tracking device by a conservator or guardian of an incompetent person for the purposes of tracking that incompetent person, unless there is a court order in place prohibiting the conservator or guardian of the incompetent person from  contacting, directly or indirectly,  harassing, following, surveilling, or stalking the incompetent person.  (5) A commercial service, such as mobile telephone service or vehicle safety or security service, which allows the service provider to determine the location or movement of a device which is provided to the customer of the commercial service and for the purpose of providing the commercial service.   (5) The use of an electronic tracking device by a commercial service provider, such as a wireless telephone service provider, when the electronic tracking device is used in support of the primary purpose of the commercial service being provided. This paragraph shall apply only after the commercial service provider has given notice of the use of the electronic tracking device to the person utilizing the service. The notice shall describe the process by which the commercial service provider may electronically track the person and disclose for what purposes the provider is using electronic tracking. The commercial service provider shall not sell, distribute, transfer, or release any information gathered or collected regarding a person from the electronic tracking device to any third party or the person utilizing the service without a court order or the written Fconsent of the actual person being tracked.   (d)   (c)  As used in this section, "electronic tracking device" means any device  that permits another person or entity to remotely determine or track the position or movement of a person or object, including, but not limited to, a Global Positioning System or other electronic tracking system.   attached to, placed on, or inserted into a vehicle, wire   less telephone, or other movable thing that reveals its location or movement by the transmission of electronic or radio signals, including, but not limited to, a global positioning system.   (e)   (d)  A violation of this section is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.  (f)   (e)  Notwithstanding subdivision (e), a violation of this section by a person who is prohibited from  contacting, directly or indirectly,  harassing, following, surveilling, or stalking another person or persons by a court order who tracks the person or persons protected by that order is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both Fthat fine and imprisonment.  (g)   (f)  A violation of this section by a person, business, firm, company, association, partnership, or corporation licensed under Division 3 (commencing with Section 5000) of the Business and Professions Code shall constitute grounds for revocation of the license issued to that person, business, firm, company, association, partnership, or corporation, pursuant to the provisions that provide for the revocation of the license as set forth in Division 3 (commencing with Section 5000) of the Business and Professions Code.  (g) Notwithstanding subdivision (a), a person shall not require, coerce, or compel any other individual to consent to undergo the subcutaneous implanting of an electronic tracking device as those terms are defined in subdivision (h) of Section 52.7 of the Civil Code.   (h) It is not a defense to this section that the electronic tracking device used by the person or entity failed to function properly.  SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.