HB 16 - Electronic tracking device; location of person without consent; prohibit

Current Version

PDF Version

Committees

HC:JudyNC
SC:S JUDY

Current Status

04/03/09 - Senate Conference Committee Appointed

First Reader Summary

A BILL to be entitled an Act to amend Part 1 of Article 3 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating to crimes involving wiretapping, eavesdropping, unauthorized surveillance, and related activities, so as to prohibit the electronic tracking of the location or movement of another person without such other person's consent; to provide for exceptions; to provide for punishment; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

Votes

Electronically Recorded Votes
Date	Time	Vote No	Yeas	Nays	NV	Exc	Description
03/12/2009	6:15PM	House Vote #263	140	026	006	008	Jacobs AM
03/12/2009	6:21PM	House Vote #264	079	088	005	008	Loudermilk AM 21 3649
03/12/2009	6:22PM	House Vote #265	106	060	006	008	Loudermilk AM RECON
03/12/2009	6:23PM	House Vote #266	096	069	007	008	Loudermilk AM
03/12/2009	6:24PM	House Vote #267	155	008	009	008	PASS
04/03/2009	3:06PM	Senate Vote #407	039	010	001	006	PASSAGE BY SUBSTITUTE
04/03/2009	11:44PM	House Vote #520	087	082	010	001	SUSPEND ONE HOUR RULE
04/03/2009	11:54PM	House Vote #526	067	097	015	001	SUSPEND ONE HOUR RULE

Status History

Bill History
Date	Action
11/17/2008	House Prefiled
01/15/2009	House First Readers
01/16/2009	House Second Readers
03/04/2009	House Committee Favorably Reported
03/12/2009	House Third Readers
03/12/2009	House Passed/Adopted
03/17/2009	Senate Read and Referred
03/26/2009	Senate Committee Favorably Reported
03/26/2009	Senate Read Second Time
04/01/2009	Senate Tabled
04/03/2009	Senate Taken from Table
04/03/2009	Senate Third Read
04/03/2009	Senate Passed/Adopted
04/03/2009	House Disagrees Senate Amend/Sub
04/03/2009	Senate Insists
04/03/2009	House Insists
04/03/2009	House Conference Committee Appointed
04/03/2009	Senate Conference Committee Appointed

Footnotes

4/1/2009 Tabled in Senate
4/3/2009 Taken from Table in Senate
4/3/2009 House Conferees: 82nd, 80th, 7th
4/3/2009 Senate Conferees: 30th, 32nd, 52nd

Versions

09 HB16/SCSFA/1

SENATE SUBSTITUTE TO HB 16

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Titles 16 and 17 of the Official Code of Georgia Annotated, relating to crimes and offenses and criminal procedure, respectively, so as to regulate the use of tracking devices; to prohibit the tracking of the location or movement of another person without such other person's consent; to provide for exceptions; to provide for punishment; to provide for the issuance of search warrants authorizing the installation, use, and removal of tracking devices subject to certain conditions; to provide for a definition; to provide for installation and use of tracking devices in emergency situations; to transfer the responsibility for regulation of bingo games and issuance of bingo licenses from the Georgia Bureau of Investigation to the Department of Revenue; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by adding a new Code section to read as follows:

"16-11-62.1.

(a) As used in this Code section, the term 'tracking device' means any device that reveals its location or movement by the transmission of electronic signals.

(b) Except as otherwise provided in this Code section, no person shall use a tracking device to determine the location or movement of another person without such other person's consent.

(c) Official law enforcement agencies shall be specifically authorized to use tracking devices pursuant to Code Section 17-5-22.1.

(d) This Code section shall not apply:

(1) When the owner or lienholder of a vehicle has consented to the use of a tracking device with respect to such vehicle;

(2) When the lessor or lessee of a vehicle and the person operating such vehicle have consented to the use of a tracking device with respect to such vehicle;

(3) To official actions of an official law enforcement agency acting in a law enforcement capacity;

(4) To actions of United States military law enforcement personnel in the performance of their official duties;

(5) To actions of a parent, legal guardian, or person in loco parentis with respect to determining the location or movement of a child or other person with whom such parent, legal guardian, or person in loco parentis has such legal relationship;

(6) To actions of a family member or caregiver with respect to determining the location or movement of a patient or family member with a diagnosis by a licensed physician of Alzheimer's disease, vascular dementia, Pick's disease, Creutzfeldt-Jakob disease, Parkinson's disease, or Lewy body dementia;

(7) To actions of a facility licensed pursuant to Title 31 with respect to determining the location or movement of a patient when such device is deemed medically necessary by the patient's physician;

(8) To actions of a private detective who is licensed pursuant to Chapter 38 of Title 43 while in the performance of duties that are authorized for such detective in connection with pending, active civil litigation, provided that any information or data obtained as a result of the use of such a tracking device by such private detective shall be confidential and shall not be disclosed to any person other than the judge and the parties involved in such litigation and their attorneys except upon order of the court in which such litigation is pending, shall be subject to discovery by any party to the litigation, and, upon the termination of the litigation, shall be immediately destroyed, provided that such private detective first obtains an order authorizing the use of a tracking device from the superior court of the county in which the person who is the subject of the tracking device resides; or

(9) To the provision of a commercial service, such as mobile telephone service or vehicle safety or security service, which allows the provider of such service to determine the location or movement of a device provided to a customer of such commercial service for the purpose of providing such commercial service.

(e) Notwithstanding subsection (d) of this Code section, no person shall be required to be implanted with a tracking device pursuant to this Code section.

(f) Any person violating this Code section shall upon conviction be guilty of a misdemeanor; provided, however, that it shall not be a violation of this Code section to use a tracking device to determine the location or movement of another person without such other person's consent if such person is an occupant of a vehicle where use of such tracking device is permissible according to the provisions of subsection (d) of this Code section."

SECTION 2.

Said title is further amended by replacing "Director" with "Commissioner" and "director" with "commissioner" wherever the former word occurs in:

(1) Code Section 16-12-51, relating to definitions pertaining to bingo;

(2) Code Section 16-12-52, relating to license required to operate bingo game and recreational bingo exception;

(3) Code Section 16-12-53, relating to bingo licensing procedures, fees, and renewals;

(4) Code Section 16-12-54, relating to revocation of licenses and access to premises by law enforcement agencies;

(5) Code Section 16-12-55, relating to certification of tax-exempt status of organization, issuance of certificate of licensure, and evidentiary nature of certificate;

(6) Code Section 16-12-56, relating to issuance of annual one-day license to nonprofit, tax-exempt school and application;

(7) Code Section 16-12-59, relating to annual report to be filed with the director;

(8) Code Section 16-12-61, relating to promulgation of necessary rules and regulations by director authorized; and

(9) Code Section 16-12-62, relating to penalties.

SECTION 3.

Said title is further amended by replacing "Georgia Bureau of Investigation" with "Department of Revenue" wherever the former words occur in:

(1) Code Section 16-12-51, relating to definitions pertaining to bingo; and

(2) Code Section 16-12-53, relating to bingo licensing procedures, fees, and renewals

SECTION 4.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new Code section to read as follows:

"17-5-22.1.

(a) As used in this Code section, the term 'tracking device' means an electronic or mechanical device which, when placed or installed upon a person or object, permits other persons to remotely determine or track the position and movement of such person or object, but the term shall not include:

(1) Devices, such as a cellular telephone or other personal electronic device, which include as an incidental feature the capability of determining the location of such devices by utilizing a global positioning satellite system; or

(2) Devices which are installed or utilized with the knowledge and consent of the owner or user of the device or, in the case of a minor, with the knowledge and consent of his or her parent or guardian.

(b) Upon the written application of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, a judge of any court in this state authorized to issue search warrants pursuant to Code Section 17-5-21 may issue a search warrant authorizing the installation, use, and removal of a tracking device subject to the following conditions:

(1) The application shall be made before a judge of the superior court with the authority to issue warrants within the geographic jurisdiction where such tracking device is to be installed;

(2) The application shall set forth facts sufficient to establish probable cause to believe that a particular crime has been committed, is being committed, or will be committed and that the person or object to be tracked is involved, was involved, or will be involved in the commission or facilitation of such crime;

(3) The application shall set forth facts sufficient to establish probable cause to believe that the use of a tracking device will result in the prevention of a criminal offense under investigation, the seizure of evidence relevant to the investigation or prosecution of a criminal offense, or the whereabouts of a fugitive from justice or a suspect, victim, or witness relating to a criminal offense;

(4) The application shall particularly describe the person or object upon which a tracking device is to be installed;

(5) A tracking device authorized by this Code section shall be installed within ten days after the issuance of the warrant and shall be installed within the geographic jurisdiction of the issuing judge. If the tracking device is not installed within that time, the warrant shall be returned to the issuing judge as unserved. The date and time of installation shall be recorded and included in the return made to the issuing judge;

(6)(A) A search warrant issued pursuant to this Code section shall authorize the use of a tracking device for a reasonable period of time, not to exceed 45 days, except as provided in subparagraph (B) of this paragraph, measured from the date such tracking device is installed upon the person or object to be tracked.

(B) Upon written application for extension and upon a finding of good cause, the issuing judge may authorize one or more extensions for a reasonable period of time, not to exceed 45 days each;

(7) When the period of time authorized for the use of a tracking device or the last extension thereof has expired, monitoring of such tracking device shall be discontinued immediately;

(8) Within ten days after the period of time authorized for the use of a tracking device or the last extension thereof has expired, the officer executing the warrant shall make a return thereof to the issuing judge. The return shall specify the date and time such tracking device was installed and the address or location of installation of such tracking device, the date and time that monitoring was discontinued, and a general summary of the movements of the object or person tracked during the duration of the surveillance;

(9) Within ten days after the period of time authorized for the use of a tracking device or the last extension thereof has expired, the officer executing a search warrant issued pursuant to this Code section shall serve a copy of such warrant on the person who was tracked or whose property was tracked. Service shall be accomplished by delivering a copy to such person or by leaving a copy at such person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location or by mailing a copy to such person's last known address. Upon the request of the state or the officer executing the warrant, the issuing judge may delay notice for a reasonable time; provided, however, that where such notice is delayed, such notice shall be served no later than ten days after issuance of an arrest warrant, indictment, or accusation based wholly or in part upon information derived from the use of a tracking device;

(10) A tracking device installed and used under the authority of a warrant issued pursuant to this Code section may be used within the jurisdiction of the issuing court as well as outside such jurisdiction if such tracking device was installed within the jurisdiction of the issuing court; and

(11) The warrant and any extension thereof, the application upon which the warrant and extensions, if any, were issued, the affidavit supporting the warrant and extensions, if any, the return, and any request for and order granting a delay in the serving of notice shall be filed with the clerk of the court of the issuing judge, or with the court if so ordered, at the time the return is made or when the warrant has been returned not executed; provided, however, that the issuing judge may order that such documents be sealed while an investigation remains ongoing until such time that an arrest warrant, indictment, or accusation based wholly or in part upon information derived from the use of the tracking device is issued.

(c)(1) Any investigative or law enforcement officer, specially designated in writing for such purpose by the Attorney General or by a district attorney, who reasonably determines that:

(A) An emergency situation exists that involves:

(i) Immediate danger of death or serious bodily injury to any person; or

(ii) Conspiratorial activities characteristic of organized crime

that requires the installation and use of a tracking device before an order authorizing such installation and use can, with due diligence, be obtained; and

(B) There are grounds upon which a search warrant pursuant to subsection (b) of this Code section could be issued to authorize such installation and use,

may have installed and use a tracking device if, within 48 hours of the time the tracking device is installed, an order approving the installation or use is issued in accordance with subsection (b) of this Code section.

(2) In the event that an application for a search warrant made pursuant to this subsection is granted, then the tracking device shall be installed and used in accordance with the provisions of subsection (b) of this Code section.

(3) In the event that an application for a search warrant made pursuant to this subsection is denied or in any event where the installation or use of the tracking device is terminated without a search warrant having been issued, any tracking information or other surveillance effected pursuant to this subsection shall be confidential and shall not be disclosed or be admissible in any court of this state except to prove violations of this Code section."

SECTION 5.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply with respect to conduct on and after that date.

SECTION 6.

All laws and parts of laws in conflict with this Act are repealed.