Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit law enforcement agencies from using unmanned aircraft systems, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, except as provided by the bills provisions. The bill would authorize a law enforcement agency to use an unmanned aircraft system if the law enforcement agency complies with specified requirements, including, among others, that before the use of an unmanned aircraft system, the law enforcement agency develops, makes available to the public, and, at least once every 3 years, reviews, a policy on the use of an unmanned aircraft system, as provided, and that the law enforcement agency complies with all applicable federal, state, and local law and the unmanned aircraft system policy developed by the law enforcement agency pursuant to the bills provisions. The bill would require a law enforcement agency that uses an unmanned aircraft system to ensure that information and data gathered through the use of the system is protected with reasonable operational, administrative, technical, and physical safeguards, and to implement and maintain reasonable security procedures and practices in order to protect information and data gathered through the use of that system from unauthorized access, destruction, use, modification, or disclosure. The bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other justifications, the law enforcement agency obtains a search warrant.

The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. By creating a new crime, the bill would impose a state-mandated local program. The bill would require a law enforcement agency that operates an unmanned aircraft system to keep a record of the use of that system, including information on whether a search warrant was sought before the system was used, and, in situations where a warrant was sought, whether the warrant was granted or denied. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a law enforcement agency.

The bill would make its provisions applicable to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency for the use of an unmanned aircraft system.

The bill would authorize an individual who has been harmed by a violation of the bills provisions to bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation, would authorize the court to award attorneys fees, as specified, and would specify that the bills provisions do not impair or impede any other rights, causes of action, claims, or defenses available under other law and that the remedies provided by the bills provisions are cumulative with any other remedies available under other law.

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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit law enforcement agencies from using unmanned aircraft systems, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, except as provided by the bills provisions. The bill would authorize a law enforcement agency to use an unmanned aircraft system if the law enforcement agency complies with specified requirements, including, among others, that before the use of an unmanned aircraft system, the law enforcement agency develops, makes available to the public, and, at least once every 3 years, reviews, a policy on the use of an unmanned aircraft system, as provided, and that the law enforcement agency complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, protection of the right of privacy guaranteed by the California Constitution, federal law applicable to the use of an unmanned aircraft system by an agency, state and local law applicable to any agencys use of surveillance technology that can be attached to an unmanned aircraft system, all applicable federal, state, and local law and the unmanned aircraft system policy developed by the law enforcement agency pursuant to the bills provisions. The bill would require a law enforcement agency that uses an unmanned aircraft system to ensure that information and data gathered through the use of the system is protected with reasonable operational, administrative, technical, and physical safeguards, and to implement and maintain reasonable security procedures and practices in order to protect information and data gathered through the use of that system from unauthorized access, destruction, use, modification, or disclosure. The bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other justifications, the law enforcement agency obtains a search warrant.

The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. By creating a new crime, the bill would impose a state-mandated local program. The bill would require a law enforcement agency that operates an unmanned aircraft system to keep a record of the use of that system, including information on whether a search warrant was sought before the system was used, and, in situations where a warrant was sought, whether the warrant was granted or denied. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a law enforcement agency.

The bill would make its provisions applicable to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency for the use of an unmanned aircraft system.

The bill would authorize, in addition to any other sanctions, penalties, or remedies provided by law, authorize an individual who has been harmed by a violation of the bills provisions to bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation, and would authorize the court to award, among other things, actual damages, punitive damages, and other preliminary and equitable relief as the court determines to be appropriate. award attorneys fees, as specified, and would specify that the bills provisions do not impair or impede any other rights, causes of action, claims, or defenses available under other law and that the remedies provided by the bills provisions are cumulative with any other remedies available under other law.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit law enforcement agencies from using unmanned aircraft systems, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, except as provided by the bills provisions. The bill would authorize a law enforcement agency to use an unmanned aircraft system if the law enforcement agency complies with specified requirements, including, among others, that before the use of an unmanned aircraft system, the law enforcement agency develops and develops, makes available to the public public, and, at least once every 3 years, reviews, a policy on the use of an unmanned aircraft system, as provided, and that the law enforcement agency complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, protection of the right of privacy guaranteed by the California Constitution, federal law applicable to the use of an unmanned aircraft system by an agency, state and local law applicable to any agencys use of surveillance technology that can be attached to an unmanned aircraft system, and the unmanned aircraft system policy developed by the law enforcement agency pursuant to the bills provisions. The bill would require a law enforcement agency that uses an unmanned aircraft system to ensure that information and data gathered through the use of the system is protected with reasonable operational, administrative, technical, and physical safeguards, and to implement and maintain reasonable security procedures and practices in order to protect information and data gathered through the use of that system from unauthorized access, destruction, use, modification, or disclosure. The bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other justifications, the law enforcement agency obtains a search warrant.

The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data of private property obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting law enforcement agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. By creating a new crime, the bill would impose a state-mandated local program. The bill would require a law enforcement agency that operates an unmanned aircraft system to keep a record of the use of that system, including information on whether a search warrant was sought before the system was used, and, in situations where a warrant was sought, whether the warrant was granted or denied. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a law enforcement agency.

The bill would make its provisions applicable to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit law enforcement agencies from using unmanned aircraft systems, or contracting for the use of unmanned aircraft systems, as defined, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, except as provided by the bills provisions. The bill would authorize a law enforcement agency to use an unmanned aircraft system if the law enforcement agency complies with specified requirements, including, among others, that prior to before the use of an unmanned aircraft system, the law enforcement agency develops and makes available to the public a policy on the use of an unmanned aircraft system, as provided, and that the law enforcement agency complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law applicable to the use of an unmanned aircraft system by an agency, state and local law applicable to any agencys use of surveillance technology that can be attached to an unmanned aircraft system, and the unmanned aircraft system policy developed by the law enforcement agency pursuant to the bills provisions. The bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other justifications, the law enforcement agency obtains a search warrant.

The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data of private property obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting law enforcement agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. By creating a new crime, the bill would impose a state-mandated local program. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a public law enforcement agency.

The bill would make its provisions applicable to all public law enforcement agencies and private entities when contracting with a public or acting as the agent of a law enforcement agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit public law enforcement agencies from using unmanned aircraft systems, or contracting for the use of unmanned aircraft systems, as defined, with certain exceptions applicable to law enforcement agencies, subject to approval by the legislative body having management and control of the law enforcement agency and other specified conditions, and in certain other cases, including when the use or operation of the unmanned aircraft system achieves the core mission of the agency and the purpose is unrelated to the gathering of criminal intelligence, as defined. except as provided by the bills provisions. The bill would authorize a law enforcement agency to use an unmanned aircraft system if the law enforcement agency complies with specified requirements, including, among others, that prior to the use of an unmanned aircraft system, the law enforcement agency develops and makes available to the public a policy on the use of an unmanned aircraft system, as provided, and that the law enforcement agency complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law applicable to the use of an unmanned aircraft system by an agency, state and local law applicable to any agencys use of surveillance technology that can be attached to an unmanned aircraft system, and the unmanned aircraft system policy developed by the law enforcement agency pursuant to the bills provisions. The bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other justifications, the law enforcement agency obtains a search warrant.

The bill would require reasonable public notice to be provided by public agencies intending to deploy unmanned aircraft systems, as specified. The bill would require a local legislative body that considers approving the use of an unmanned aircraft system by a law enforcement agency to provide an opportunity for public comment before granting approval, and to specify the circumstances under which an unmanned aircraft system may be used and the time limits applicable to each circumstance. The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data of private property obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting public law enforcement agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. By creating a new crime, the bill would impose a state-mandated local program. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a public agency.

The bill would make its provisions applicable to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit public agencies from using unmanned aircraft systems, or contracting for the use of unmanned aircraft systems, as defined, with certain exceptions applicable to law enforcement agencies, subject to approval by the legislative body having management and control of the law enforcement agency and other specified conditions, and in certain other cases, including when the use or operation of the unmanned aircraft system achieves the core mission of the agency and the purpose is unrelated to the gathering of criminal intelligence, as defined.

The bill would require reasonable public notice to be provided by public agencies intending to deploy unmanned aircraft systems, as specified. The bill would require reasonable public notice, or a set of guidelines, to be made available to the public by law enforcement agencies intending to deploy unmanned aircraft systems, as specified. The bill would require a local legislative body that considers approving the use of an unmanned aircraft system by a law enforcement agency to provide an opportunity for public comment before granting approval, and to specify the circumstances under which an unmanned aircraft system may be used and the time limits applicable to each circumstance. The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting public agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by or launched from, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a public agency.

The bill would make its provisions applicable to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit public agencies from using unmanned aircraft systems, or contracting for the use of unmanned aircraft systems, as defined, with certain exceptions applicable to law enforcement agencies and in certain other cases, including when the use or operation of the unmanned aircraft system achieves the core mission of the agency and the purpose is unrelated to the gathering of criminal intelligence, as defined.

The bill would require reasonable public notice to be provided by public agencies intending to deploy unmanned aircraft systems, as specified. The bill would require reasonable public notice, or a set of guidelines, to be made available to the public by law enforcement agencies intending to deploy unmanned aircraft systems, as specified. The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting public agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by or launched from an unmanned aircraft system and that is intended to cause bodily injury or death, or damage to, or the destruction of, real or personal property. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a public agency.

The bill would make its provisions applicable to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

This bill would generally prohibit public agencies from using unmanned aircraft systems, or contracting for the use of unmanned aircraft systems, as defined, with certain exceptions applicable to law enforcement agencies and in certain other cases, including when the use or operation of the unmanned aircraft system achieves the core mission of the agency and the purpose is unrelated to the gathering of criminal intelligence, as defined.

The bill would require reasonable public notice to be provided by public agencies intending to deploy unmanned aircraft systems, as specified. The bill would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. The bill would generally prohibit images, footage, or data obtained through the use of an unmanned aircraft system under these provisions from being disseminated outside the collecting public agency, except as specified. Unless authorized by federal law, the bill would prohibit a person or entity, including a public agency subject to these provisions, or a person or entity under contract to a public agency, for the purpose of that contract, from equipping or arming an unmanned aircraft system with a weapon or other device that may be carried by or launched from an unmanned aircraft system and that is intended to cause bodily injury or death, or damage to, or the destruction of, real or personal property. The bill would also provide that specified surveillance restrictions on electronic devices apply to the use or operation of an unmanned aircraft system by a public agency.

The bill would make its provisions applicable to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system.

Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.

This bill would make certain images, footage, or data obtained through the use of an unmanned aircraft system under its provisions, or any related record, including, but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, subject to disclosure. The bill would except from the disclosure requirements discussed above images, footage, data, and records obtained through the use of an unmanned aircraft system if disclosure would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Because this bill would require local entities to comply with additional rules and requirements regarding the use of information obtained from unmanned aircraft systems, it 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.

 THIRD READING  

Bill No: AB 56

Author: Quirk (D)

Amended: 9/4/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 7/7/15

AYES: Hancock, Leno, Liu, Monning

NOES: Glazer, Stone

NO VOTE RECORDED: Anderson

SENATE JUDICIARY COMMITTEE: 5-2, 7/14/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15

AYES: Lara, Beall, Hill, Leyva, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 61-12, 5/26/15 - See last page for vote

SUBJECT: Unmanned aircraft systems

SOURCE: Author

DIGEST: This bill sets forth when an unmanned aircraft system can be used by a law enforcement agency

Senate Floor Amendments of 9/4/15 delete the provisions stating that images etc. obtained from an unmanned aircraft system are public records; to define surveil and to make other changes.

ANALYSIS:

Existing federal law requires, in the Aviation Administration Modernization and Reform Act of 2012, the Secretary of Transportation to develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. The plan is required to provide for safe integration of civil unmanned aircraft systems into national airspace as soon as practicable, not later than September 30, 2015. (112 P.L. 95, 332.)

Existing state law:

1. Authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)

2. Prohibits wiretapping or eavesdropping on confidential communications. (Penal Code § 630.)

3. Makes it a crime for a person, intentionally, and without requisite consent, to eavesdrop on a confidential communication by means of any electronic amplifying or recording device. (Penal Code § 632.)

4. Exempts the Attorney General, any district attorney, specified peace officers such as city police and county sheriffs, and a person acting under the direction of an exempt agency from the prohibitions against wiretapping and other related activities to the extent that they may overhear or record any communication that they were lawfully authorized to overhear or record prior to the enactment of the prohibitions. Existing law provides that any evidence so obtained is admissible in any judicial, administrative, or legislative proceeding. (Penal Code § 633.)

5. The US Constitution 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.” (4th Amendment of the U.S. Constitution.)

6. The California Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)

7. 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.)

8. Permits a search warrant to be issued for any of the following grounds:

1. When the property subject to search was stolen or embezzled;

2. When property or things were used as the means to commit 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, as specified, 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 or things to be seized include an item or any evidence that tends to show a violation of a specified section of the Labor Code, or tends to show that a particular person has violated that section;

9. 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, as specified;

10. 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, specified persons;

11. 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, as specified, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a specified protective order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law; or when the person is subject to a gun violence restraining order,

12. When the information to be received from the use of a tracking device constitutes evidence that tends to show that either 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, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or 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; and

13. When a sample of the blood of a person constitutes evidence of a DUI. (Penal Code §1524(a).)

This bill:

1. Provides that a law enforcement agency shall not use an unmanned aircraft system (UAS), or contract for the use of an UAS, except as provided.

2. Provides that a law enforcement agency may use a UAS if the law enforcement agency complies.

3. Prohibits a law enforcement agency from using an UAS to surveil private property unless the law enforcement agency complies with the requirements under this bill, and has either obtained a search warrant based on probable cause, or the express permission of the person or entity to authorize a search of the specific private property to be subjected to surveillance.

4. Provides that a law enforcement agency shall develop a policy on the use of unmanned aircraft systems and train the law enforcement agency’s officers and employees on the policy, before the use of the unmanned aircraft system.

5. Provides that the policy on unmanned aircraft systems shall be made available to the public in writing, and posted on the law enforcement agency’s website, if one exists.

6. States that a policy on an unmanned aircraft must address specified items.

7. Allows a law enforcement agency to use an UAS to surveil private property if an exigent circumstance exists, including but not limited to, either of the following circumstances:

1. In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to fires, hostage crises, barricaded suspects, "hot pursuit" situations if reasonably necessary to prevent harm to law enforcement officers or others; and search and rescue operations on land or water;

2. To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills.

8. Provides that images, footage or data obtained by a law enforcement agency through the use of an UAS shall not be used by the law enforcement agency for any purpose other than for which it was collected.

9. Provides that images, footage, or data obtained through eh use of an unmanned aircraft system shall be permanently destroyed within one year, except that a law enforcement agency may retain the images, footage or data in the following circumstances:

1. For training purposes. Images, footage or data retained can be used for the education and instruction of a law enforcement agency’s employees in matters related to the mission of the law enforcement agency and for no other purpose.

2. For academic research or teaching purposes. Images, footage or data retained for academic research or teaching purposes shall be used only for the advancement of research and teaching conducted by an academic or research institution and matters related to the mission of the institution and for no other purpose.

10. Provides that law enforcement may retain beyond one year images, footage, or data obtained by an UAS in both of the following circumstances:

1. If a search warrant authorized the collection of the images, footage or data.

2. If the images, footage or data are evidence in any claim filed or any pending litigation, internal disciplinary proceeding, enforcement proceeding or criminal investigation.

11. Provides that unless authorized by federal law, a person or entity including a law enforcement agency shall not equip or arm an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death or damage to, or destruction of real or personal property.

12. Provides that all unmanned aircraft systems shall be operated so as to minimize the collection of images, footage or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an unmanned aircraft system, or if no warrant was obtained, for the purposes unrelated to the justification for the operation.

13. Provides that a local legislative body may adopt more restrictive policies on the acquisition, use of or retention of unmanned aircraft systems.

14. Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned, aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

15. Defines “criminal intelligence” as information, compiled, analyzed or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.

16. Defines “surveil” as the purposeful observation of a person or private property with the intent of gathering criminal intelligence.

17. Provides that “law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute the law.

18. Provides that a public agency with a core mission to protect an environmental resource is not a law enforcement agency when the agency is performing an act directly connected to the agency’s core mission.

19. Provides for the ability for an individual to get civil sanctions for a violation of this provision.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Significant one-time and ongoing non-reimbursable local law enforcement agency costs (Local Funds) to adhere to the standards and protections provided for under this measure including but not limited to the development of policies, procedures, training, data security, collection, and retention, and public access.

• One-time and ongoing potentially significant future cost pressure (General Fund/Special Fund) to the extent UAS are utilized in the future by state agencies including but not limited to the Department of Justice (DOJ), the California Highway Patrol (CHP), and the Department of Fish and Wildlife (DFW

SUPPORT: (Verified 9/4/15)

California Civil Liberties Advocacy

OPPOSITION: (Verified 9/4/15)

ACLU

California Police Chiefs Association

California State Sheriffs’ Association

ASSEMBLY FLOOR: 61-12, 5/26/15

AYES: Alejo, Travis Allen, Bigelow, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Dababneh, Dahle, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon, Grove, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Rendon, Ridley-Thomas, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Baker, Brough, Cooley, Cooper, Frazier, Beth Gaines, Gallagher, Gray, Hadley, Medina, Olsen, Perea

NO VOTE RECORDED: Achadjian, Bloom, Chávez, Gonzalez, Harper, Mathis, Rodriguez

Prepared by: Mary Kennedy / PUB. S. /

9/8/15 17:26:50

**** END ****

 THIRD READING  

Bill No: AB 56

Author: Quirk (D)

Amended: 9/1/15 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 7/7/15

AYES: Hancock, Leno, Liu, Monning

NOES: Glazer, Stone

NO VOTE RECORDED: Anderson

SENATE JUDICIARY COMMITTEE: 5-2, 7/14/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15

AYES: Lara, Beall, Hill, Leyva, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 61-12, 5/26/15 - See last page for vote

SUBJECT: Unmanned aircraft systems

SOURCE: Author

DIGEST: This bill sets forth when an unmanned aircraft system can be used by a law enforcement agency.

ANALYSIS: Existing federal law requires, in the Aviation Administration Modernization and Reform Act of 2012, the Secretary of Transportation to develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. The plan is required to provide for safe integration of civil unmanned aircraft systems into national airspace as soon as practicable, not later than September 30, 2015. (112 P.L. 95, 332.)

Existing state law:

1. Authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)

2. Prohibits wiretapping or eavesdropping on confidential communications. (Penal Code § 630.)

3. Makes it a crime for a person, intentionally, and without requisite consent, to eavesdrop on a confidential communication by means of any electronic amplifying or recording device. (Penal Code § 632.)

4. Exempts the Attorney General, any district attorney, specified peace officers such as city police and county sheriffs, and a person acting under the direction of an exempt agency from the prohibitions against wiretapping and other related activities to the extent that they may overhear or record any communication that they were lawfully authorized to overhear or record prior to the enactment of the prohibitions. Existing law provides that any evidence so obtained is admissible in any judicial, administrative, or legislative proceeding. (Penal Code § 633.)

5. The US Constitution 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.” (4th Amendment of the U.S. Constitution.)

6. The California Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)

7. 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.)

8. Permits a search warrant to be issued for any of the following grounds:

1. When the property subject to search was stolen or embezzled;

2. When property or things were used as the means to commit 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, as specified, 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 or things to be seized include an item or any evidence that tends to show a violation of a specified section of the Labor Code, or tends to show that a particular person has violated that section;

9. 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, as specified;

10. 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, specified persons;

11. 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, as specified, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a specified protective order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law; or when the person is subject to a gun violence restraining order,

12. When the information to be received from the use of a tracking device constitutes evidence that tends to show that either 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, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or 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; and

13. When a sample of the blood of a person constitutes evidence of a DUI. (Penal Code §1524(a).)

This bill:

1. Provides that a law enforcement agency shall not use an unmanned aircraft system (UAS), or contract for the use of an UAS, except as provided.

2. Provides that a law enforcement agency may use a UAS if the law enforcement agency complies.

3. Prohibits a law enforcement agency from using an UAS to surveil private property unless the law enforcement agency complies with the requirements under this bill, and has either obtained a search warrant based on probable cause, or the express permission of the person or entity to authorize a search of the specific private property to be subjected to surveillance.

4. Provides that a law enforcement agency shall develop a policy on the use of unmanned aircraft systems and train the law enforcement agency’s officers and employees on the policy, before the use of the unmanned aircraft system.

5. Provides that the policy on unmanned aircraft systems shall be made available to the public in writing, and posted on the law enforcement agency’s website, if one exists.

6. States that a policy on an unmanned aircraft must address specified items.

7. Allows a law enforcement agency to use an UAS to surveil private property if an exigent circumstance exists, including but not limited to, either of the following circumstances:

1. In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to fires, hostage crises, barricaded suspects, "hot pursuit" situations if reasonably necessary to prevent harm to law enforcement officers or others; and search and rescue operations on land or water;

2. To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills.

8. Provides that images, footage or data obtained by a law enforcement agency through the use of an UAS shall not be used by the law enforcement agency for any purpose other than for which it was collected.

9. Provides that images, footage, or data obtained through eh use of an unmanned aircraft system shall be permanently destroyed within one year, except that a law enforcement agency may retain the images, footage or data in the following circumstances:

1. For training purposes. Images, footage or data retained can be used for the education and instruction of a law enforcement agency’s employees in matters related to the mission of the law enforcement agency and for no other purpose.

2. For academic research or teaching purposes. Images, footage or data retained for academic research or teaching purposes shall be used only for the advancement of research and teaching conducted by an academic or research institution and matters related to the mission of the institution and for no other purpose.

10. Provides that law enforcement may retain beyond one year images, footage, or data obtained by an UAS in both of the following circumstances:

1. If a search warrant authorized the collection of the images, footage or data.

2. If the images, footage or data are evidence in any claim filed or any pending litigation, internal disciplinary proceeding, enforcement proceeding or criminal investigation.

11. Provides that unless authorized by federal law, a person or entity including a law enforcement agency shall not equip or arm an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death or damage to, or destruction of real or personal property.

12. Provides that all unmanned aircraft systems shall be operated so as to minimize the collection of images, footage or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an unmanned aircraft system, or if no warrant was obtained, for the purposes unrelated to the justification for the operation.

13. Provides that a local legislative body may adopt more restrictive policies on the acquisition, use of or retention of unmanned aircraft systems.

14. Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned, aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

15. Defines “criminal intelligence” as information, compiled, analyzed or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.

16. Provides that “law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute the law.

17. Provides that a public agency with a core mission to protect an environmental resource is not a law enforcement agency when the agency is performing an act directly connected to the agency’s core mission.

18. Provides for the ability for an individual to get civil sanctions for a violation of this provision.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Significant one-time and ongoing non-reimbursable local law enforcement agency costs (Local Funds) to adhere to the standards and protections provided for under this measure including but not limited to the development of policies, procedures, training, data security, collection, and retention, and public access.

• One-time and ongoing potentially significant future cost pressure (General Fund/Special Fund) to the extent UAS are utilized in the future by state agencies including but not limited to the Department of Justice (DOJ), the California Highway Patrol (CHP), and the Department of Fish and Wildlife (DFW

SUPPORT: (Verified 8/31/15)

California Civil Liberties Advocacy

OPPOSITION: (Verified 8/31/15)

ACLU

California Police Chiefs Association

California State Sheriffs’ Association

ASSEMBLY FLOOR: 61-12, 5/26/15

AYES: Alejo, Travis Allen, Bigelow, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Dababneh, Dahle, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gordon, Grove, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Rendon, Ridley-Thomas, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Baker, Brough, Cooley, Cooper, Frazier, Beth Gaines, Gallagher, Gray, Hadley, Medina, Olsen, Perea

NO VOTE RECORDED: Achadjian, Bloom, Chávez, Gonzalez, Harper, Mathis, Rodriguez

Prepared by: Mary Kennedy / PUB. S. /

9/1/15 20:20:27

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 56 (Quirk) - Unmanned aircraft systems

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 27, 2015

Bill Summary:

AB 56 would establish procedural and privacy protection standards under which a law enforcement agency may use, obtain, or use information from, an unmanned aircraft system (UAS), as specified.

Fiscal Impact:

• Significant one-time and ongoing non-reimbursable local law enforcement agency costs (Local Funds) to adhere to the standards and protections provided for under this measure including but not limited to the development of policies, procedures, training, data security, collection, and retention, and public access.

• One-time and ongoing potentially significant future cost pressure (General Fund/Special Fund) to the extent UAS are utilized in the future by state agencies including but not limited to the Department of Justice (DOJ), the California Highway Patrol (CHP), and the Department of Fish and Wildlife (DFW).

Committee Amendments:

Revise the provisions related to a private right of action and narrow the definition of “law enforcement agency” as follows:

1. Law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute law violators and that employs peace officers. 

(2) Notwithstanding paragraph (1), a public agency with a core mission to protect an environmental resource is not a law enforcement agency for the purposes of this title when they are performing acts directly connected to the agency’s core mission.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 56 (Quirk) - Unmanned aircraft systems

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 56 would establish procedural and privacy protection standards under which a law enforcement agency may use, obtain, or use information from, an unmanned aircraft system (UAS), as specified.

Fiscal Impact:

• Significant one-time and ongoing non-reimbursable local law enforcement agency costs (Local Funds) to adhere to the standards and protections provided for under this measure including but not limited to the development of policies, procedures, training, data security, collection, and retention, and public access.

• One-time and ongoing potentially significant future cost pressure (General Fund/Special Fund) to the extent UAS are utilized in the future by state agencies including but not limited to the Department of Justice (DOJ), the California Highway Patrol (CHP), and the Department of Fish and Wildlife (DFW).

Background:

An unmanned aircraft system, also referred to as “unmanned aerial vehicle,” “remote piloted aircraft,” or “drone,” is an aircraft without a human pilot that is either controlled remotely or fully automated. Along with a variety of businesses, law enforcement agencies across the country are considering how this technology could assist in their operations. According to one report:

As drones become cheaper and more capable, more police departments across the country are asking for and getting federal approval to use them for law enforcement. But the Federal Aviation Administration only takes safety into consideration when it grants a law enforcement agency approval to use drones, leaving privacy protections to legislation—which, depending on the state in question, may or may not exist. Agencies as large as the Michigan State Police and as small as the Grand Forks County [N.D.] Sheriff's Department have received FAA approval to use drones. Most departments use them for missions like search-and-rescue or for photographing a crime scene or an accident site. But unless a law enforcement agency is within one of the 14 states that have passed privacy legislation limiting how police can use drones, there's little in theory keeping it from using a drone for a less innocuous end—such as surveillance without a warrant. (Kaveh Waddell, Few Privacy Limitations Exist on How Police Use Drones, National Journal (February 5, 2015).)

This bill seeks to establish procedural and privacy protection standards should law enforcement agencies choose to utilize this technology.

Proposed Law:

This bill would prohibit a law enforcement agency from using a UAS, obtaining a UAS from another public agency by contract, loan, or other arrangement, or using information obtained from a UAS used by another public agency, except as authorized below:

• Provides that the bill’s provisions apply to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency.

• Authorizes a law enforcement agency to use a UAS, or use information obtained from a UAS used by another public agency, if the law enforcement agency complies with protections against unreasonable searches guaranteed by the U.S. Constitution and the California Constitution, as well as all applicable federal state, and local laws including, but not limited to, regulations of the Federal Aviation Administration.

• States that if the use of a UAS by a local law enforcement agency may involve the collection of images, footage, or data from another county, city, or city and county, the law enforcement agency must obtain a warrant based on probable cause, unless an exigent circumstance exists.

• Prohibits a law enforcement agency from using a UAS or information obtained from a UAS used by another public agency, to surveil private property unless the law enforcement agency has obtained a search warrant based on probable cause, the express permission of the person or entity with the legal authority to authorize a search of the specific private property, or is using the system under specified exigent circumstances.

• Requires, before a law enforcement agency may use a UAS, that the agency develop and make available to the public, as specified, a policy on the use of the UAS and train the law enforcement agency’s officers and employees on the policy.

• Requires a law enforcement agency’s policy on the use of a UAS to include numerous specified provisions, and requires the policy to be reviewed at least once every three years to evaluate whether changes are needed.

• Requires, before the policy is finalized, that a law enforcement agency present the proposed policy at a regularly scheduled and noticed public meeting of its governing body with an opportunity for public comment.

• Requires images, footage, or data obtained through the use of a UAS to be permanently destroyed within one year, unless the images, footage, or data were obtained pursuant to a search warrant or are used for specified purposes.

• Specifies that images, footage, or data obtained through the use of a UAS or any related record, including usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, are public records subject to disclosure, except as specified.

• Requires all UAS to be operated so as to minimize the collection of images, footage, or data of persons, places, or things not specified with particularity in the warrant authorizing the use of a UAS, or, if no warrant was obtained, for purposes unrelated to the justification for the operation.

• States that unless authorized by federal law, a person or entity shall not equip or arm a UAS with a weapon or other device that may be carried by, or launched or directed from, a UAS, as specified.]

• Requires a law enforcement agency that operates a UAS to keep a record of the use of that system, to include information on whether a search warrant was sought before the system was used, and, in situation where a warrant was sought, whether the warrant was granted or denied.

• Specifies that a local legislative body may adopt more restrictive policies than those specified in state law on the acquisition, use, or retention of UAS.

• Defines the following terms:

• “Law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute law violators.

• “Unmanned aircraft system” means an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

Related Legislation:

AB 1327 (Gorell) 2014 would have prohibited law enforcement agencies from using UAS, with certain exceptions for law enforcement agencies acting pursuant to a warrant. This bill would have required notice by public agencies intending to deploy UAS. This bill was vetoed by the Governor with the following message:

I am returning Assembly Bill 1327 without my signature. This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances. 

There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution. 

SB 15 (Padilla) 2013 would have required law enforcement agencies to obtain search warrants when using UAS, and would have required that an application for a search warrant specify the intended purpose for which the UAS would be used. This bill failed in the Assembly Committee on Public Safety.

Staff Comments:

By requiring local law enforcement agencies to comply with additional rules and regulations regarding the use of UAS, this bill imposes a state mandated local program. However, as local law enforcement agencies are not mandated to utilize UAS technology, any costs to local agencies are estimated to be non-reimbursable.

Although state agencies including the DOJ, CHP, and the DFW currently do not utilize UAS, this bill creates significant future cost pressure, as these agencies would potentially incur both one-time and ongoing costs to comply with the provisions of this measure should these agencies opt to utilize UAS technology at some point in the future.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 56 (Author:Quirk)

Version: July 7, 2015

Hearing Date: July 14, 2015

Fiscal: Yes

Urgency: No

Consultant: TH

SUBJECT

Unmanned Aircraft Systems

DESCRIPTION

This bill would prohibit law enforcement agencies from using an unmanned aircraft system, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, unless certain requirements are met. To use an unmanned aircraft system, among other things, law enforcement agencies would be required to develop and make available to the public a policy on the use of the system, as well as comply with specified provisions in the United States Constitution, the California Constitution, federal, state and local law, and the unmanned aircraft system policy developed by the law enforcement agency.

This bill would prohibit a law enforcement agency from using an unmanned aircraft system to surveil private property unless, among other things, the law enforcement agency obtains a search warrant, and would require images, footage, or data obtained through the use of an unmanned aircraft system under these provisions to be permanently destroyed within one year, except as specified. Unless authorized by federal law, this bill would also prohibit a person or entity, including a public agency, or a person or entity under contract to a public agency, from equipping or arming an unmanned aircraft system with a weapon.

BACKGROUND

The development of small unmanned aircraft systems (UAS) – known variously as “unmanned aerial vehicles,” “remote piloted aircraft,” or simply “drones” – promises to transform the way Californians interact with each other and their environment. Just a few decades ago, small aircraft of this type were the exclusive domain of hobbyists. Within the last decade or so, the public has become familiar with the military’s use of unmanned aircraft to accomplish certain mission objectives. However, in December 2013 when Amazon.com, FedEx, and UPS announced their plans to integrate unmanned aircraft into their logistics and delivery services, the possibility of widespread adoption of this technology became clear.

Along with a variety of businesses, law enforcement agencies across the country are also starting to look at how to leverage unmanned aerial vehicle technology. According to one report:

As drones become cheaper and more capable, more police departments across the country are asking for and getting federal approval to use them for law enforcement. But the Federal Aviation Administration only takes safety into consideration when it grants a law enforcement agency approval to use drones, leaving privacy protections to legislation—which, depending on the state in question, may or may not exist. Agencies as large as the Michigan State Police and as small as the Grand Forks County [N.D.] Sheriff's Department have received FAA approval to use drones. Most departments use them for missions like search-and-rescue or for photographing a crime scene or an accident site. But unless a law enforcement agency is within one of the 14 states that have passed privacy legislation limiting how police can use drones, there's little in theory keeping it from using a drone for a less innocuous end—such as surveillance without a warrant. (Kaveh Waddell, Few Privacy Limitations Exist on How Police Use Drones, National Journal (Feb. 5, 2105) <http://www.nationaljournal.com/tech/few-privacy-limitations-exist-on-how-police-use-drones-20150205> [as of May 6, 2015].)

At present, the use of unmanned aerial vehicles of any kind in the skies over California is fairly restricted. Congress effectively closed the national airspace to commercial drone use in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012.¹ That Act established a framework for safely integrating unmanned aircraft into the national airspace no later than September 30, 2015. The Act does, however, permit certain commercial unmanned aircraft operations to take place before the integration framework is implemented. Section 333 of the Act authorizes the Secretary of Transportation to establish special interim requirements for the operation of these aircraft by designated operators, provided the aircraft and their operators meet certain minimum standards and have applied for a commercial use exemption. To date, a handful of commercial operators have applied for, and received, permission to fly commercial drones, including several film production companies, construction, surveying, and inspection companies, and a number of real estate firms. The Act also sets out a separate interim operation exemption for “public unmanned aircraft,” allowing public agencies like police departments to operate drones upon application, provided the aircraft and their operators meet certain minimum standards.² According to recent media reports, several California law enforcement agencies and other public entities have acquired drones, but very few – if any – have put them into service.

This bill would prohibit a law enforcement agency from using an unmanned aircraft system unless it first adopts a policy governing its use and presents that policy to its governing body and allows for public comment. This bill would require a law enforcement agency to obtain a warrant before using a UAS in another city or county, or before surveiling private property, except in specified circumstances. This bill would also prohibit the weaponization of drones, and would require images and other data obtained by a UAS to be destroyed within one year, except as specified.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, provides that all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (Cal. Const, art. I, Sec. 1.)

Existing federal and state law provide 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., 4^th Amend.; Cal. Const, art. I, Sec. 13.)

Existing federal law provides that the Federal Aviation Administration shall regulate aircraft operations conducted in the national airspace, including unmanned aircraft operations. (49 U.S.C. Sec. 40103; 49 U.S.C. Sec. 40102(a)(6).)

Existing law makes it a crime for any person to intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrop upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device. (Pen. Code Sec. 632.)

Existing law provides that any person who trespasses on property for the purpose of committing any act, or attempting to commit any act, in violation of the above provision shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment. (Pen. Code Sec. 634.)

Existing law provides that no person or entity in this state shall use an electronic tracking device to determine the location or movement of a person, but also provides that this section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. (Pen. Code Sec. 637.7.)

This bill would prohibit a law enforcement agency from using an unmanned aircraft system, obtaining an unmanned aircraft system from another public agency by contract, loan, or other arrangement, or using information obtained from an unmanned aircraft system used by another public agency, except as authorized in this bill. This bill would apply to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency.

This bill would authorize a law enforcement agency to use an unmanned aircraft system, or use information obtained from an unmanned aircraft system used by another public agency, if the law enforcement agency complies with all of the following:

• protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution;

• federal law applicable to the use of an unmanned aircraft system by an agency, including, but not limited to, regulations of the Federal Aviation Administration; and

• state and local law applicable to any agency’s use of surveillance technology that can be attached to an unmanned aircraft system.

This bill states that if the use of an unmanned aircraft system by a local law enforcement agency may involve the collection of images, footage, or data from another county, city, or city and county, the law enforcement agency shall obtain a warrant based on probable cause, unless an exigent circumstance exists.

This bill would prohibit a law enforcement agency from using an unmanned aircraft system, or information obtained from an unmanned aircraft system used by another public agency, to surveil private property unless the law enforcement agency has obtained a search warrant based on probable cause, the express permission of the person or entity with the legal authority to authorize a search of the specific private property, or is using the system under specified exigent circumstances.

This bill would require, before a law enforcement agency may use an unmanned aircraft system, that the agency develop and make available to the public a policy on the use of the unmanned aircraft system and train the law enforcement agency’s officers and employees on the policy. Law enforcement agency use of the unmanned aircraft system must be consistent with this policy.

This bill would require a law enforcement agency’s policy on the use of an unmanned aircraft system to specify, at a minimum, the following:

• the circumstances under which an unmanned aircraft system may and may not be used;

• the time limits applicable to each circumstance;

• the rules and processes required before such use;

• the individuals who may access or use an unmanned aircraft system or its collected information and the circumstances under which they may do so;

• the safeguards to protect unauthorized use or access;

• training required for any individual authorized to use or access the sharing or information;

• the sharing of images, data, or footage with other law enforcement agencies and public agencies;

• the manner in which information obtained from another public agency will be used; and

• mechanisms to ensure the policy is followed.

This bill would require, before the policy is finalized, that a law enforcement agency present the proposed policy at a regularly scheduled and noticed public meeting of its governing body with an opportunity for public comment.

This bill would require images, footage, or data obtained through the use of an unmanned aircraft system to be permanently destroyed within one year, unless the images, footage, or data were obtained pursuant to a search warrant or are used for the following purposes:

• for training purposes;

• for academic research or teaching purposes; and

• for use as evidence in any claim filed or any pending litigation, internal disciplinary proceeding, enforcement proceeding, or criminal investigation.

This bill would specify that images, footage, or data obtained through the use of an unmanned aircraft system or any related record, including usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, are public records subject to disclosure, except as specified.

This bill would require all unmanned aircraft systems to be operated so as to minimize the collection of images, footage, or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an unmanned aircraft system, or, if no warrant was obtained, for purposes unrelated to the justification for the operation.

This bill would state that unless authorized by federal law, a person or entity shall not equip or arm an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death, or damage to, or the destruction of, real or personal property.

This bill would specify that a local legislative body may adopt more restrictive policies than those specified in state law on the acquisition, use, or retention of unmanned aircraft systems.

This bill would define the following terms:

• “law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute law violators; and

• “unmanned aircraft system” means an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system.

COMMENT

1. Stated need for the bill

The author writes:

Drones are inherently different from manned aircrafts, both in size and flying capability. Some unmanned aircraft weigh 1,900 pounds and can remain aloft for 30 hours or more because there is no need for them to land to change pilots. Some are 6 inches long. Others can perform dangerous missions without risking loss of life.

Commercially used drones can serve many societal benefits including assessing hostage situations, addressing bomb threats and detecting forest fires. Despite the possible benefits, there is potential for misuse without clearly established policies that protect privacy rights.

There is no California law or regulation governing the use of drones and no guidelines on how public agencies can acquire them. Several jurisdictions have already purchased drones with very little, if any, public announcement or discussion.

We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be a great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to track the fire in real time, allowed commanders to move firefighters out of harm’s way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies.

Over the last few years a number of law enforcement agencies have purchased drones with no public input and little transparency in the process. This has stirred feelings of frustration, skepticism and concern from Californians regarding how drones will be operated. Though some agencies have indicated that they are not intending to deploy them anytime soon, allowing for some form of public forum as they develop their policies and guidelines would help ease tensions and help to build trust.

AB 56 will establish a set of parameters that law enforcement agencies must follow if they choose to operate a drone. Law enforcement agencies will be required to develop policies regarding privacy protections, data sharing, and unauthorized use of a drone that must be followed when operating a drone in a public and private space. Law enforcement agencies must also present these policies at a regularly scheduled meeting of their governing board and allow for public comment before they are officially adopted. In addition, this bill places additional restrictions when using a drone over private spaces to protect the privacy of individuals. Finally, this bill allows local governments to enact stricter guidelines on the acquisition, retention and use of drones.

AB 56 recognizes that drones can be a beneficial tool, but at the same time they can be abused without guidance on their use. Drones are a new and continuously evolving technology; this bill seeks to establish a baseline on their use to allow the Legislature to build upon as needed.

2. Fundamental Right to Privacy

The California Constitution provides that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., art. I, Sec. 1.) This “right of privacy is vitally important. It derives, in this state, not only from the protections against unreasonable searches and seizures guaranteed by the Fourth Amendment and article I, section 13, but also from article I, section 1, of our State Constitution. Homage to personhood is the foundation for individual rights protected by our state and national Constitutions.” (In re William G. (1985) 40 Cal.3d 550, 563.) Because of their inherent maneuverability and the ease with which they may enter spaces infeasible for manned aircraft, the growth of unmanned aerial vehicle technology presents a challenge to maintaining traditional boundaries that separate public and private spheres, and to preserving the fundamental right to privacy in California.

California’s constitutional right to privacy restricts the government and others from infringing upon legally protected privacy interests of California residents. The California Supreme Court has found that “[l]egally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (informational privacy); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (autonomy privacy). (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 [internal quotation marks omitted].) The latter of these – informational privacy – is “the core value” furthered by the constitutional right of privacy. (Id.) “A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue.” (Id.) The Court has held that “the usual sources of positive law governing the right to privacy -- common law development, constitutional development, [and] statutory enactment”-- illuminate “[w]hether established social norms safeguard a particular type of information . . . from public or private intervention.” (Id. at 36.)

Recent Fourth Amendment jurisprudence strongly suggests that information subject to collection by unmanned aircraft operated by law enforcement agencies, such as locational information and surveillance data, falls within the class of information safeguarded by established social norms. In United States v. Jones (2012) 132 S. Ct. 945, for example, the U.S. Supreme Court examined the significant privacy concerns raised by locational tracking technology. The Jones case considered whether the attachment of a Global Positioning System (GPS) tracking device to an individual’s vehicle, and the subsequent use of that device to track the vehicle’s movements on public streets, constituted a search within the meaning of the Fourth Amendment. In her concurring opinion, Justice Sotomayor made the following observations:

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring--by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track--may alter the relationship between citizen and government in a way that is inimical to democratic society.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. (United States v. Jones (2012) 132 S. Ct. 945, 955-956 [internal citations and quotation marks omitted].)

Use of unmanned aircraft to track the location of individuals and gather surveillance data is arguably more invasive than GPS tracking of a vehicle’s movements on public streets. Unlike GPS tracking, unmanned aircraft can collect data on a wide range of individuals at the same time, and in areas far removed from public streets.

This bill proposes a number of safeguards that would help ensure law enforcement agencies operate unmanned aircraft systems in a manner that respects Californian’s fundamental right to privacy. First, this bill would prohibit the use of these vehicles until after a law enforcement agency both develops a usage policy disclosing how drone systems will be deployed and how information gathered through these systems will be used or shared, and presents this usage policy to the agency’s governing board for public discussion. Second, the bill includes warrant requirements for use of unmanned aircraft in cities or counties outside a local law enforcement agency’s home jurisdiction, and over private property when surveiling that property, subject to specified exceptions. Third, the bill contains provisions that require law enforcement officers to minimize the collection of images and data via an unmanned aircraft system to only that specified in an authorizing warrant or, in the case no warrant was issued, to only that which is necessary to carry out the operation prompting use of the aircraft. The bill also would require law enforcement agencies to delete data collected by a drone within a year of its collection, unless needed for such things as prosecution of a criminal investigation or unless it was collected pursuant to a warrant.

While these provisions would help to ensure that law enforcement drones are operated in a manner respectful of the fundamental right to privacy, the author may wish to consider amending the bill to explicitly require UAS usage policies to describe how authorized uses are consistent with respect for individual privacy and civil liberties, and to explicitly prohibit the use of these aircraft for the sole purpose of monitoring individuals exercising constitutionally guaranteed rights, such as the right to speak or peaceably assemble under the First Amendment. Additionally, the author may wish to consider amending the bill to ensure that its requirements are enforceable by a broad range of stakeholders, and that aggrieved parties are given adequate remedies to redress harms in the event of non-compliance.

Potential Amendments:

• require law enforcement unmanned aircraft system use to comply with all applicable law, including the fundamental right to privacy;

• require law enforcement use policies to describe:

  • how unmanned aircraft system use will respect privacy and civil liberties;

  • the authorized purposes for using unmanned aircraft systems and for collecting information or data using that technology;

  • the employees who are authorized to use or access information or data collected by an unmanned aircraft system;

  • how the use of an unmanned aircraft system will be monitored to ensure compliance with all applicable privacy laws;

  • measures that will be used to ensure the accuracy of information or data collected; and

  • the purpose of, and process for, sharing or disseminating information or data gathered through the use of an unmanned aircraft system.

• prohibit the use of unmanned aircraft systems solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the United States Constitution, the California Constitution, and federal and state law;

• require law enforcement use policies to be periodically reviewed; and

• provide adequate remedies for individuals harmed by the improper use of unmanned aircraft systems.

The addition of “privacy” to the list of unalienable rights in the California Constitution “was intended to strengthen the right of privacy, “and “[t]he elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the [existing] privacy right.” (Cent. Valley Ch. 7th Step Found. v. Younger (1989) 214 Cal.App.3d 145, 160.) “[The] principal ‘mischiefs’ at which the amendment is directed are: (1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.” (Id.) The policy question for this Committee to consider is, without more, does this bill provide enough guidance to law enforcement agencies to avoid the “mischiefs” the privacy amendment sought to curtail?

3. Data Use and Security

As discussed in Comment 2, the type of information collected through the use of an unmanned aircraft system (UAS) could be highly sensitive. For example, locational data gathered by a UAS, especially over time, can be used to determine a person’s political and religious beliefs, known associates, frequented places, and even their medical conditions. Other recent bills regulating law enforcement’s use of surveillance technologies considered by this Committee have included provisions addressing security and operational protocols to ensure that collected data remains confidential and is protected from unauthorized access or use. (See e.g. Sen. Com. on Judiciary, Analysis of Sen. Bill No. 34 (2015–2016 Reg. Sess.) as introduced, [for hearing on Apr. 14, 2015].) This bill would require a law enforcement agency’s usage policy to describe, among other things, “safeguards to protect unauthorized use or access.” However, the bill does not impose any direct requirements to ensure that collected data is protected from misuse or data breach, or that the permissible use of collected data is restricted by appropriate safeguards to ensure respect for individual privacy and civil liberties.

Insufficient data security and use protocols for UAS collected information may risk infringing upon an individual’s constitutional right to privacy in much the same way as improper “front-end” collection practices. Under this bill, law enforcement agencies will be confronted with determining such things as what purposes images, footage, or data obtained through the use of a UAS should be used for, whether this information should be used for purposes other than that for which they were originally collected, and whether it should be shared with other public and private entities. Similarly, law enforcement agencies will have to determine how such information should be protected from misuse or improper access and who should have access to it. The policy question for this Committee to consider is whether the Legislature ought to provide more direct guidance to law enforcement agencies faced with these critical issues of data security and privacy protection. To this end, the Committee may wish to amend this bill to provide explicit data use and security standards that directly protect individual privacy and civil liberties.

Potential Amendments:

• ensure that information and data gathered through the use of an unmanned aircraft system is protected with reasonable operational, administrative, technical, and physical safeguards to ensure its confidentiality and integrity; and

• implement and maintain reasonable security procedures and practices in order to protect information and data gathered through the use of that system from unauthorized access, destruction, use, modification, or disclosure.

4. Opposition Concerns

The American Civil Liberties Union of California, in opposition, states:

As amended, AB 56 would grant unprecedented and unconstitutional surveillance powers to the state. For example, by allowing unlimited use of a drone over all public lands, highways, and spaces open to the public, law enforcement would be authorized to track anyone, including by following them around any time they are in public, which would appear to include all commercial areas open to the general public, without any judicial oversight or cause to suspect wrongdoing. Additionally, AB 56 would authorize warrantless surveillance of activities protected by the First Amendment, such as protest rallies, which has led to documented abuses by law enforcement. Law enforcement should not be authorized to perform such wide-ranging surveillance without a warrant supported by probable cause.

In contrast, the California State Sheriffs’ Association and the California Police Chiefs Association (Chiefs), also in opposition, suggest that the warrant requirements in this bill are too burdensome, raising specific concerns about restricting the use of unmanned aerial vehicles in adjacent cities or counties without a warrant. According to the Chiefs, “if an agency is operating an unmanned aircraft system in a hot pursuit situation, the agency would have to terminate the system’s use if the suspect crossed a jurisdictional boundary.” They suggest, instead, that the same exceptions to the warrant requirement provided for the use of UAS systems over private property should be applied to multijurisdictional operations.

Support: Central Coast Forest Association

Opposition: American Civil Liberties Union of California; California Police Chiefs Association; California State Sheriffs’ Association

HISTORY

Source: Author

Related Pending Legislation:

SB 170 (Gaines, 2015) would provide that a person who knowingly and intentionally operates an unmanned aircraft on or above the grounds of a state prison or a jail is guilty of a misdemeanor, except as specified. This bill is pending in the Assembly Public Safety Committee.

SB 142 (Jackson, 2015) would clarify that the operation of an unmanned aerial vehicle less than 350 feet above the property of another, without permission or legal authority, constitutes trespass. This bill is pending in the Assembly Judiciary Committee.

SB 262 (Author:Galgiani, 2015) would authorize law enforcement agencies to use unmanned aircraft systems provided such use complies with certain conditions, including: search and seizure protections in the U.S. and California Constitutions; federal law applicable to unmanned aircraft systems; and state law applicable to law enforcement agency use of surveillance technology. This bill would also require law enforcement agencies to receive approval from their local governing body prior to using unmanned aircraft systems, and would restrict the use of such systems for conducting surveillance of private property. This bill is pending in the Senate Judiciary Committee.

SB 271 (Gaines, 2015) would make it an infraction to operate an unmanned aircraft on the grounds of, or less than 350 feet above ground level within the airspace overlaying, a public school providing instruction in kindergarten or grades 1 to 12 during school hours and without permission of school officials. This bill would exempt specified media and news personnel unless they receive a request from school officials to cease using an unmanned aircraft above a school, and would also exempt law enforcement. This bill is pending in the Assembly Education Committee.

AB 14 (Waldron, 2015) would create the Unmanned Aircraft Systems Task Force, which would be required to research, develop, and formulate a comprehensive policy for unmanned aircraft systems in California. The task force would be required to submit, among other things, a policy draft and suggested legislation pertaining to unmanned aircraft systems to the Legislature and the Governor on or before January 1, 2018. This bill is pending reconsideration in the Assembly Transportation Committee.

Prior Legislation:

AB 1327 (Gorell, 2014) would have prohibited public agencies from using unmanned aircraft systems, or contracting for the use of these systems, with certain exceptions for law enforcement agencies acting pursuant to a warrant and in certain other cases, including when the use or operation of the unmanned aircraft system achieves the core mission of the agency and the purpose of use is unrelated to the gathering of criminal intelligence. The bill would have also required notice by public agencies intending to deploy unmanned aircraft, would have required images, footage, or data obtained through the use of such aircraft to be permanently destroyed within one year except as specified, and would have prohibited equipping unmanned aircraft with weapons. This bill was vetoed by Governor Brown.

SB 15 (Padilla, 2013) would have, among other things, required law enforcement agencies to obtain search warrants when using unmanned aircraft, and would have required that an application for the search warrant specify the intended purpose for which the unmanned aircraft would be used. The bill would have also restricted data collection by unmanned aircraft and would have prohibited equipping unmanned aircraft with weapons. This bill died in the Assembly Public Safety Committee.

AB 1524 (Waldron, 2013) would have required any entity that owns or operates an unmanned aircraft to place identifying information or digitally store identifying information on the aircraft. The bill would have exempted model aircraft, and would have made a person or entity that violates its provisions liable for a civil fine not to exceed $2,500. This bill was set for hearing in the Assembly Transportation Committee, but the hearing was cancelled at the author’s request.

Prior Vote:

Senate Public Safety Committee (Ayes 4, Noes 2)

Assembly Floor (Ayes 61, Noes 12)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Privacy and Consumer Protection Committee (Ayes 9, Noes 1)

Assembly Public Safety Committee (Ayes 6, Noes 0)

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 56 Hearing Date: July 7, 2015

Subject: Unmanned Aircraft Systems

HISTORY

Source: Author

Prior Legislation: SB 15 (Padilla) failed Assembly Public Safety 2014

AB 1327 (Gorell) Vetoed 2014

Support: None known

Opposition: ACLU (unless amended); California Police Chiefs Association Inc.; California State Sheriffs’ Association (unless amended)

Assembly Floor Vote: 61 - 12

PURPOSE

The purpose of this bill is to set forth when an unmanned aircraft system can be used by a law enforcement agency.

Existing federal law, the Aviation Administration Modernization and Reform Act of 2012 requires the Secretary of Transportation to develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system. The plan is required to provide for safe integration of civil unmanned aircraft systems into national airspace as soon as practicable, not later than September 30, 2015. (112 P.L. 95, 332.)

Existing law authorizes the Attorney General, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)

Existing law prohibits wiretapping or eavesdropping on confidential communications. (Penal Code § 630.)

Existing law makes it a crime for a person, intentionally, and without requisite consent, to eavesdrop on a confidential communication by means of any electronic amplifying or recording device. (Penal Code § 632.)

Existing law exempts the Attorney General, any district attorney, specified peace officers such as city police and county sheriffs, and a person acting under the direction of an exempt agency from the prohibitions against wiretapping and other related activities to the extent that they may overhear or record any communication that they were lawfully authorized to overhear or record prior to the enactment of the prohibitions. Existing law provides that any evidence so obtained is admissible in any judicial, administrative, or legislative proceeding. (Penal Code § 633.)

The US Constitution 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.” (4^th Amendment of the U.S. Constitution.)

The California Constitution provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (Article I, Section 13 of the California Constitution.)

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 permits a search warrant to be issued for any of the following grounds:

• When the property subject to search was stolen or embezzled;

• When property or things were used as the means to commit 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, as specified, 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 a specified section of the Labor Code, or tends to show that a particular person has violated that section;

• 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, as specified;

• 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, specified persons;

• 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, as specified, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a specified protective order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law; or when the person is subject tot a gun violence restraining order,

• When the information to be received from the use of a tracking device constitutes evidence that tends to show that either 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, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or 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; and

• When a sample of the blood of a person constitutes evidence of a DUI. (Penal Code §1524(a).)

This bill provides that a law enforcement agency shall not use an unmanned aircraft system (UAS), or contract for the use of an UAS, except as provided.

This bill provides that a law enforcement agency may use an UAS if the law enforcement agency complies with all of the following:

• Protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution.

• Federal law applicable to the use of an UAS by an agency, including, but not limited to, regulations of the Federal Aviation Administration (FAA).

• State and local applicable to any agency's use of surveillance technology that can be attached to an UAS.

• If the use of an UAS by a local law enforcement agency may involve the collection of images from an adjacent county, city, or city and county, the law enforcement agency shall obtain a warrant based upon probable cause.

• The agency develops and makes available to the public a policy on the use of an UAS and trains the law enforcement agency's officers and employees on the policy, prior to the use of the UAS.

• The law enforcement agency uses the UAS consistent with the policy developed pursuant to this paragraph.

• Prior to finalizing the policy required by this paragraph, the law enforcement agency shall provide an opportunity for public comment at a regularly scheduled meeting of its governing body.

• The policy required by this paragraph shall specify, at a minimum, the circumstances under which an unmanned aircraft may be used and the time limits applicable to each circumstance.

This bill prohibits a law enforcement agency from using an UAS to surveil private property unless the law enforcement agency complies with the requirements under this bill, and has either obtained a search warrant based on probable cause, or the express permission of the person or entity to authorize a search of the specific private property to be subjected to surveillance.

This bill allows a law enforcement agency to use an UAS to surveil private property if an exigent circumstance exists, including but not limited to, either of the following circumstances:

• In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to fires, hostage crises ,barricaded suspects, "hot pursuit" situations if reasonably necessary to prevent harm to law enforcement officers or others; and search and rescue operations on land or water;

• To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills

This bill provides that images, footage or data obtained by a law enforcement agency through the use of an UAS shall not be used by the law enforcement agency for any purpose other than for which it was collected.

This bill provides that images, footage, or data obtained through eh use of an unmanned aircraft system shall be permanently destroyed within one year, except that a law enforcement agency may retain the images, footage or data in the following circumstances:

• For training purposes. Images, footage or data retained can be used for the education and instruction of a law enforcement agency’s employees in matters related to the mission of the law enforcement agency and for no other purpose.

• For academic research or teaching purposes. Images, footage or data retained for academic research or teaching purposes shall be used only for the advancement of research and teaching conducted by an academic or research institution and matters related to the mission of the institution and for no other purpose.

This bill provides that law enforcement may retain beyond one year images, footage, or data obtained by an UAS in both of the following circumstances:

• If a search warrant authorized the collection of the images, footage or data.

• If the images, footage or data are evidence in any claim filed or any pending litigation, internal disciplinary proceeding, enforcement proceeding or criminal investigation.

This bill provides that unless authorized by federal law, a person or entity including a law enforcement agency shall not equip or arm an unmanned aircraft system with a weapon or other device that may be carried by, or launched or directed from, an unmanned aircraft system and that is intended to cause incapacitation, bodily injury or death or damage to, or destruction of real or personal property.

This bill provides that all unmanned aircraft systems shall be operated so as to minimize the collection of images, footage or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an unmanned aircraft system, or if no warrant was obtained, for the purposes unrelated to the justification for the operation.

This bill provides that a local legislative body may adopt more restrictive policies on the acquisition, use of or retention of unmanned aircraft systems.

This bill defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned, aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

This bill defines “criminal intelligence” as information, compiled, analyzed or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.

This bill provides that “law enforcement agency” means the Attorney General, each district attorney, and each agency of the state or political subdivision of the state authorized by statute to investigate or prosecute law violators.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight 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 February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 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).

While significant gains have been made in reducing the prison population, the state now 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:

International industry development, growth, and investment over the past several years have allowed Unmanned Aircraft Systems (UAS) to evolve from remotely piloted vehicles with limited capabilities to semi and fully autonomous systems for commercial applications. There are some 100 U.S. companies, academic institutions, and government organizations developing over 300 UAS designs.

Congress has essentially closed off national airspace to commercial drone flights. The passage of the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 has directed the FAA to establish regulations by 2015 to allow for commercial use of drones. Six test sites have been approved to allow the FAA to develop research findings and operation experiences to help ensure safe integration. However, the Act does allow for the FAA to grant permits for certain commercial unmanned aircraft operations (e.g. to film movie scenes). The flying of drones for recreational purposes is allowed as long as the aircraft is flown in accordance with certain safety rules.

Drones are inherently different from manned aircrafts, both in size and flying capability. Some unmanned aircraft weigh 1,900 pounds and can remain aloft for 30 hours or more because there is no need for them to land to change pilots. Some are 6 inches long. Others can perform dangerous missions without risking loss of life.

Commercially used drones can serve many societal benefits including assessing hostage situations, addressing bomb threats and detecting forest fires. Despite the possible benefits, there is potential for misuse without clearly established policies that protect privacy rights.

There is no California law or regulation governing the use of drones and no guidelines on how public agencies can acquire them. Several jurisdictions have already purchased drones with very little, if any, public announcement or discussion.

We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives.  Drones, as with other technologies, can be a great asset to the state and improve public safety.  For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada.  This aerial surveillance allowed firefighters to track the fire in real time, allowed commanders to move firefighters out of harm’s way and reposition firefighters as the wind shifted the fire across the mountainside.  However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies.

Over the last few years a number of law enforcement agencies have purchased drones with no public input and little transparency in the process. This has stirred feelings of frustration, skepticism and concern from Californians regarding how drones will be operated. Though some agencies have indicated that they are not intending to deploy them anytime soon, allowing for some form of public forum as they develop their policies and guidelines would help ease tensions and help to build trust.

AB 56 will establish a set of parameters for the use of drones in public and private spaces. The bill creates accountability and transparency by requiring that law enforcement agencies allow for public engagement in the development of their policies regarding the use of drones and requiring that those policies be made publicly available. Additionally the bill provides protections to ensure that there isn’t a backdoor use of drones my agencies that have no approved policies in place. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use.”

2. Technology and the 4^th Amendment

Both the United States and the California constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, sec. 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant where a person has a reasonable expectation of privacy. The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. [Arkansas v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds by California v. Acevedo, supra.]

Courts have been confronted with questions of how evolving technology intersects with the Fourth Amendment. In Kyllo v. United States (2001) 533 U.S. 27, the U.S. Supreme Court considered whether the use of a thermal imager, which detects infrared radiation invisible to the naked eye, to determine whether the defendant was growing marijuana in his apartment, was a search in violation of the Fourth Amendment. The Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Id. at p. 40.)

In United States v. Jones (2012) 132 S. Ct. 945, the Supreme Court was presented with a Fourth Amendment challenge to the use of a Global Positioning System (GPS) tracking device by law enforcement officers to monitor the movements of a suspected drug trafficker's vehicle over a period of 28 days. The Court held that the government's installation of the GPS device on the defendant's private property for the purpose of conducting surveillance constituted a "search" under the Fourth Amendment. GPS technology is intrusive because it "generates a precise, comprehensive, record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future." (Id. at pp. 955-956.)

Because technology is always evolving it is important to consider how new technology should be regulated in order to avoid governmental abuse. The Court's decisions in prior cases provide some guidance on how new technology may be evaluated within the framework of the Fourth Amendment's protections against unreasonable searches and seizures. As illustrated in Kyllo and Jones, even in a public space, the use of advanced technology to conduct surveillance without a warrant may be restricted by the Fourth Amendment.

3. Use of Drones by Law Enforcement

This bill generally prohibits the use of an unmanned aircraft system, commonly referred to as a drone, over private property by law enforcement except with a warrant or permission and under the other provision of this bill. This bill does not address the use of a drone by law enforcement on public property nor does it address the use of drones by other public agencies.

1. Must have a policy.

In order to use a drone, this bill requires that the law enforcement agency develop a policy. The bill lists what the policy shall contain and will be amended in the Senate Judiciary Committee, if it passes this Committee, to include:

1. Circumstances under which the unmanned aircraft system may and may not be used;

2. Time limits applicable to each circumstance;

3. Rules and processes required prior to such use;

4. Individuals who may access or use the system or access collected information and circumstances under which they may do so;

5. Safeguards to protect unauthorized use or access;

6. Training required for any individual authorized to use or access the system or information;

7. Sharing of images, data or footage with other law enforcement and public agencies;

8. How information obtained from another public agency will be used;

9. Mechanisms to ensure the policy is followed.

2. Input from legislative body.

This bill requires that the law enforcement agency make available to the public the policy on the use of drones. Amendments to be taken in Senate Judiciary, if this passes this Committee, will clarify that the law enforcement agency shall present the proposed policy at a regularly scheduled and noticed public meeting of its governing body with an opportunity for public comment.

This bill also states that a local governing agency can adopt more restrictive policies on the acquisition, use or retention of a drone. Thus, if a city or county wanted to ban the use of drones by law enforcement in their jurisdiction they could.

3. Images and footage obtained.

The images, footage and data obtained through the use of a drone by law enforcement shall in general be destroyed within one year. However there are exceptions made for images, footage and data obtained by a warrant, needed in an active investigation, proceeding etc., or if the images, footage or data are being obtained for educational or academic purposes.

4. Prohibits arming.

This bill clearly prohibits the arming of drones with any type of weapon.

5. Information from another public agency.

This bill specifies that the requirements on law enforcement under this bill also apply to anyone law enforcement may contract with. . Amendments to be taken in Senate Judiciary, if this passes this Committee, will clarify that use of a drone not only by law enforcement or contract with law enforcement but also by loan or any other arrangement or information obtained from an unmanned aircraft system used by another public agency also must follow the law as set forth in this bill.

4. Other Legislation

SB 262 (Galgiani), which passed this Committee on April 14, 2015 with a vote of 5-1 and is now in Senate Judiciary Committee where it hasn’t been heard allows a law enforcement agency to use an unmanned aircraft system if the agency complies with: (1) protections against unreasonable searches and seizures; (2) Federal Law applicable to the use of unmanned aircraft systems; and, (3) state law applicable to the use of surveillance technology.

SB 170 (Gaines) which passed this Committee on April 14, 2015 with a vote 6-0 makes the intentional operation of an unmanned aircraft system in airspace over laying a prison or jail a misdemeanor. This bill is now in the Assembly Committee on Privacy and Consumer Protection.

SB 271 (Gaines) which passed this Committee on April 14, 2015 with a vote 6-0 prohibits the unauthorized use of a drone on a school grounds during school hours or to capture images of the school grounds during school hours. This bill is now in the Assembly Committee on Privacy and Consumer Protection.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 56

Author:(Quirk)

As Amended Ver:April 22, 2015

Majority vote

SUMMARY:

Regulates the use of unmanned aircraft systems (UAS) by public agencies. Specifically, this bill:

1. Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system.

2. Prohibits a public agency from using an UAS, or contracting for the use of an UAS, except as provided in the provisions of this bill.

3. States that a law enforcement agency may use an UAS if the law enforcement agency complies with all of the following:

   1. Protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution.

   2. Federal law applicable to the use of an UAS by an agency, including, but not limited to, regulations of the Federal Aviation Administration (FAA).

   3. State law applicable to any agency's use of surveillance technology that can be attached to an UAS.

   4. The law enforcement agency shall obtain prior approval from the legislative body having management and control of the agency.

   5. If the use of an UAS by a local law enforcement agency may involve the systematic collection of images from an adjacent county, city, or city and county, the law enforcement agency shall obtain approval from the local legislative body of that county, city, or city and county.

   6. The agency shall develop and make available to the public a policy on the use of an UAS and shall train the law enforcement agency's officers and employees on the policy, prior to the use of the UAS.

4. States that a local legislative body that considers approving the use of an UAS for use by a law enforcement agency to gather information pursuant to this section shall provide an opportunity for public comment at a regularly scheduled public meeting of the body before granting approval.

5. Specifies that the approval granted by a local legislative body pursuant to this section shall specify, at a minimum, the circumstances under which an UAS may be used and the time limits applicable to each circumstance.

6. Prohibits a law enforcement agency from using an UAS to surveil private property unless the law enforcement agency complies with the requirements under this bill, and has either obtained a search warrant based on probable cause, or the express permission of the person or entity to grant access to the specific private property to be subjected to surveillance.

7. Allows a law enforcement agency to use an UAS to surveil private property if an exigent circumstance exists, including but not limited to:

   1. In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to fires, hostage crises, "hot pursuit" situations if reasonably necessary to prevent harm to law enforcement officers or others; and search and rescue operations on land or water;

   2. To assess the necessity of first responders and process scenes in situations relating to traffic accidents;

   3. To document traffic collision and crime scenes;

   4. To inspect state parks and wilderness areas for illegal vegetation or fires regardless of permanent improvements or temporary human habitation; and,

   5. To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills.

8. Allows a public agency, other than a law enforcement agency, to use an UAS, or contract for the use of an UAS, to achieve the core mission of the agency provided that the purpose is unrelated to the gathering of criminal intelligence.

9. States that a public agency that is not primarily a law enforcement agency, but that employs peace officers or performs functions related to criminal investigations, may use an UAS without obtaining a warrant to achieve the core mission of the agency, provided that the purpose is unrelated to the gathering of criminal intelligence, and that the images, footage, or data are not used for any purpose other than that for which it was collected.

10. Defines "criminal intelligence" as information compiled, analyzed, or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.

11. Requires a public agency shall provide reasonable notice to the public that, at a minimum, consists of a one-time announcement regarding the agency's intent to deploy UAS technology and a description of the technology’s capabilities to the public.

12. States that, except as permitted by the provisions in this bill, images, footage, or data obtained by a public agency, or any entity contracting with a public agency, over private property and pursuant to this bill shall not be disseminated to a law enforcement agency unless the law enforcement agency the permission of the person or entity with the legal authority to grant access to the property or a search warrant for the images, footage, or data based on probable cause, or the law enforcement agency would not have been required to obtain a warrant to collect the images, footage, or data itself as specified.

13. Allows a public agency that is not primarily a law enforcement agency, but that employs peace officers or performs functions related to criminal investigations, to disseminate images, footage, or data collected by the use of an UAS if the dissemination is to others within that agency.

14. Prohibits disseminating the images, footage, or data to entities outside the collecting public agency, unless one of the following circumstances applies:

    1. To another public agency if the images, footage, or data are related to the core mission of both public agencies involved in the sending or receiving of the images, footage, or data;

    2. To an entity outside the collecting public agency if the images, footage, or data are evidence in any claim filed or any pending litigation; or

    3. To a private entity if both of the following conditions are satisfied:

       1. The collecting public agency is not a law enforcement agency; and,

       2. The images, footage, or data are related to the core function of the collecting public agency.

15. Allows a public agency to make available to the public images, footage, or data obtained by the public agency through the use of an UAS if both of the following conditions are satisfied:

    1. The images, footage, or data do not depict or describe any individual or group of individuals, or the activities of any individual or group of individuals whose identity or identities can be ascertained; and,

    2. The disclosure of the images, footage, or data is required to fulfill the public agency's statutory or mandatory obligations.

16. Prohibits, except as permitted by the provisions of this bill, public agencies from using images, footage, or data obtained by a public agency through the use of an UAS for any purpose other than that for which it was collected.

17. Requires images, footage, or data obtained through the use of an UAS to be permanently destroyed within one year, except in the following circumstances:

    1. For training purpose, as specified.

    2. For academic research or teaching purposes, as specified.

    3. For purposes of monitoring material assets owned by the public agency.

    4. For environmental, public works, or land use management or planning by the public agency.

    5. The images, footage or data are evidence currently being used, or anticipated to be used, in a criminal proceeding.

18. States, notwithstanding the above provision, a public agency may retain beyond one year images, footage, or data in the following circumstances:

    1. If a search warrant authorized the collection of the images, footage, or data.

    2. If the images, footage, or data are evidence in any claim filed or any pending litigation internal disciplinary proceeding, or enforcement proceeding.

19. Prohibits a person, entity, or public agency from equipping or arming an UAS with a weapon or other device that may be carried by, or launched, or directed from, an UAS and that may cause incapacitation, bodily injury or death or damage to, or the destruction of, real or personal property, unless authorized by federal law.

20. Provides that all UAS shall be operated so as to minimize the collection of images, footage, or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an UAS, or, if no warrant was obtained, for purposes unrelated to the justification for the operation.

21. States that none of the provisions in this bill are intended to conflict with or supersede federal law, including rules and regulations of the FAA; and authorizes a local legislative body to adopt more restrictive policies on the acquisition, use, or retention of UAS.

22. Prohibits a person, entity, or public agency from equipping or arming an UAS with a weapon or other device that may be carried by or launched from an UAS and that may cause bodily injury or death or damage to, or the destruction of, real or personal property.

23. Provides that surveillance restrictions on electronic devices shall also apply to UAS.

24. States that none of the provisions above are intended to conflict with or supersede federal law, including rules and regulations of the FAA.

25. Provides that notwithstanding any other provision, images, footage or data obtained through the use of the UAS or any related record, including but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, are public records subject to disclosure.

26. Clarifies that nothing in this bill or any other law requires the disclosure of images, footage, or data obtained through the use of an UAS, or any related record that identify any person or entity that subsequently obtains or requests records of that system, to the extent that disclosure of the images, footage, data, or records would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

EXISTING FEDERAL LAW: The Aviation Administration Modernization and Reform Act of 2012 provides for the integration of civil UAS, commonly known as drones, into the national airspace system by September 30, 2015. The Act requires the Administrator of the FAA to develop and implement operational and certification requirements for the operation of public UAS in the national airspace by December 31, 2015.

EXISTING STATE LAW:

1. States that a search warrant is 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.

2. Prohibits wiretapping or eavesdropping on confidential communications, which excludes communications made in public or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded.

3. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record.

FISCAL EFFECT:

According to the Assembly Appropriations Committee:

1. Requiring every public agency or law enforcement agency that intends to use UAS to provide notice to the public could easily exceed $150,000, given the thousands of local agencies, from local governments, to police departments, to water boards, to mosquito abatement districts. However, this is not a reimbursable state mandated cost.

2. Likely minor state trial court costs to the extent that new requirements regarding warrants and court orders occupy court time.

COMMENTS:

According to the author, "We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be a great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to track the fire in real time, allowed commanders to move firefighters out of harm's way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies."

"Over the last few years a number of law enforcement agencies have purchased drones with no public input and little transparency in the process. This has stirred feelings of frustration, skepticism and concern from Californians regarding how drones will be operated. Though some agencies have indicated that they are not intending to deploy them anytime soon, allowing for some form of public forum as they develop their policies and guidelines would help ease tensions and help to build trust.

"AB 56 will establish a set of parameters for the use of drones in public and private spaces. It restricts the sharing of data between agencies (public and law enforcement) to prevent the roundabout tracking of individuals. Additionally, this bill will create accountability within the law enforcement community by requiring that they provide notice to their governing agency or public on what they intend to use (and not to use) drones for. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use."

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0000411

Date of Hearing: May 13, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 56

Author:(Quirk) – As Amended Ver:April 22, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill regulates the use of unmanned aircraft systems (UAS), as defined, by public agencies. Specifically, this bill:

1. Requires reasonable notice, as specified, to be provided by a public agency and a law enforcement agency prior to using UAS or contracting for the use of UAS.

2. Specifies conditions for the use of UAS by a law enforcement agency, without consent from the property owner or without obtaining a warrant, over private property.

3. Regulates the use of images, footage, or data obtained by a public agency through the use of UAS.

FISCAL EFFECT:

1. Requiring every public agency or law enforcement agency that intends to use UAS to provide notice to the public could easily exceed $150,000, given the thousands of local agencies, from local governments, to police departments, to water boards, to mosquito abatement districts. However, this is not a reimbursable state mandated cost.

2. Likely minor state trial court costs to the extent that new requirements regarding warrants and court orders occupy court time.

COMMENTS:

1. Background: The Aviation Administration Modernization and Reform Act of 2012 provides for the integration of civil UAS, commonly known as drones, into the national airspace system by September 30, 2015. The Act requires the Administrator of the FAA to develop and implement operational and certification requirements for the operation of public UAS in the national airspace by December 31, 2015.

Current state law permits a search warrant to be issued for a variety of reasons. A search warrant is 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.

Current law also prohibits wiretapping or eavesdropping on confidential communications. However, current law provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record.

2. Purpose. According to the author, "We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be of great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to tract the fire in real time, allowed commanders to move firefighters out of harm’s way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies."

"Over the last few years, a number of law enforcement agencies have purchased drones with no public input and little transparency in the process. This has stirred feelings of frustration, skepticism and concern from Californians regarding how drones will be operated. Though some agencies have indicated that they are not intending to deploy them anytime soon, allowing for some form of public forum as they develop their policies and guidelines would help ease tensions and help to build trust.”

"AB 56 will establish a set of parameters for the use of drones in public and private spaces. It restricts the sharing of data between agencies (public and law enforcement) to prevent the roundabout tracking of individuals. Additionally, this bill will create accountability within the law enforcement community by requiring that they provide notice to their governing agency or public on what they intend to use (and not to use) drones for. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use."

3. Prior Legislation:

1. AB 1327 (Gorell), of the 2013-2014 Legislative Session, would have regulated the use of UAS by public agencies and the dissemination and use of any images, data and footage obtained by those systems. AB 1327 was vetoed, Governor Brown expressed privacy concerns.

2. SB 15 (Padilla), of the 2013-2014 Legislative Session, would have required law enforcement to get a warrant for drone use if it implicated a legitimate expectation of privacy and would have limited drone use by public agencies to within the scope of the agencies authority and prevented public agencies from providing drone information to law enforcement without a warrant. SB 15 was held in Assembly Public Safety.

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: April 30, 2015

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Mike Gatto, Chair

ABPCA Bill Id:AB 56

Author: (Quirk) – As Amended Ver: April 22, 2015

SUBJECT: Unmanned aircraft systems

SUMMARY: Regulates the use of an unmanned aircraft system (UAS) by state and local law enforcement and other public agencies, including a requirement that a law enforcement agency obtain approval from the legislative body governing the agency and a restriction on the use of UAS over private property, unless a search warrant or consent is present. Specifically, this bill:

1. Requires a law enforcement agency that plans to use a UAS over public lands, highways and spaces open to the public to comply with all of the following:
   
   

   1. Protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution;
      
      

   2. Federal law applicable to the use of a UAS, including Federal Aviation Administration (FAA) regulations;
      
      

   3. State law applicable to any agency’s use of surveillance technology that can be attached to a UAS;
      
      

   4. The law enforcement agency shall obtain prior approval from the legislative body having management and control of the agency;
      
      

   5. If the use of a UAS may involve the systematic collection of images from an adjacent county or city, then the law enforcement agency shall obtain approval from the local legislative body of that city or county; and,

6. The law enforcement agency must develop and share with the public its UAS policy and train agency officers and employees on the policy, prior to the use of the UAS.
   
   

1. Requires a local legislative body that considers approving law enforcement agency use of UASs to provide an opportunity for public comment at a regularly scheduled public meeting prior to granting approval and requires the approval to specify the circumstances under which the UAS may be used and the time limits applicable to each type of use.
   
   

2. Requires a law enforcement agency that plans to use UAS to surveil private property to get either a search warrant or the consent of the person or entity with the legal authority to grant access to the specific privacy property to be subjected to surveillance.
   
   

3. Makes an exception to the above requirements in emergencies and other circumstances as follows:
   
   

   1. If there is an imminent threat to life or of great bodily harm, such as fires, hostage crises, "hot pursuit," and search and rescue operations;
      
      

   2. To assess or document traffic accidents and crime scenes;
      
      

   3. To inspect state parks and wilderness areas for illegal vegetation or fires regardless of permanent improvements or temporary human habitation; and,
      
      

   4. To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oil spills or chemical spills.
      
      

4. Requires a non-law enforcement public agency (“public agency”) that plans to use UAS to comply with all of the following:
   
   

   1. The agency may only use UAS to achieve the core mission of the agency, not for gathering of criminal intelligence, and the images, footage, and data are not used for any other purpose; and,
      
      

   2. The agency must make a one-time public announcement of the agency's intent to deploy UAS and include a description of the UAS’s capabilities.

6. Permits a public agency to share images, footage, or data gathered with UAS as follows:

1. Within the public agency that collected the images, footage or data;
   
   

2. With another public agency if the information is related to the core mission of both agencies;. or,
   
   

3. With a law enforcement agency if the law enforcement agency has:

1. A search warrant, if one would have been required if the law enforcement agency were gathering the images directly; or,
   
   

2. If the data is of private property, consent of the person or entity with legal authority to grant access to the property or a search warrant for the images, footage, or data.
   
   

1. With an outside entity if the images, footage, or data are evidence in pending litigation;
   
   

2. With the public if:
   
   

   1. The images, footage, or data do not depict or describe any individual or group of individuals, or the activities of any individual or group of individuals whose identity or identities could be ascertained; and,

2. The disclosure of the images, footage, or data is required to fulfill the public agency's statutory or mandatory obligations.
   
   

1. Requires destruction of images, footage, or data gathered via UAS to be permanently destroyed within one year, with exceptions for the following:
   
   

   1. Training, academic research and teaching purposes;
      
      

   2. Monitoring material assets owned by the public agency;
      
      

   3. Environmental, public works, or land use management or planning;
      
      

   4. In cases where a search warrant authorized the collection of the images, footage, or data; and,
      
      

   5. In cases where the images, footage, or data are evidence in pending litigation, an internal disciplinary proceeding, or an enforcement proceeding.
      
      

2. Prohibits equipping or arming a UAS with a weapon or other device that may be carried by or launched or directed from a UAS and that may cause incapacitation, bodily injury or death, or damage to or the destruction of real or personal property, unless authorized by federal law.
   
   

3. Requires a UAS to be operated to minimize the collection of images, footage, or data of persons, places, or things not specified with particularity in the warrant authorizing the use of a UAS, or, if no warrant was obtained, for purposes unrelated to the justification for the operation.
   
   

4. States that none of the provisions in this bill are intended to conflict with or supersede federal law, including rules and regulations of the FAA.

11. Authorizes a local legislative body to adopt more restrictive policies on the acquisition or use of UAS.

12. Defines "criminal intelligence" as information compiled, analyzed, or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.
    
    

13. Defines “law enforcement agency” to include the Attorney General, district attorneys, and any agency authorized by statute to investigate or prosecute law violators.
    
    

14. Defines “public agency” to include state and local agencies, and distinguishes them from law enforcement agencies. =
    
    

15. Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

EXISTING LAW:

1. Provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (U.S. Const. amend. IV,)

2. Provides that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” (CA Const. art. I, Section 13.)

3. Requires, under the Federal Aviation Administration Modernization and Reform Act of 2012, the FAA to integrate UAS into the national airspace system by September 30, 2015, and to develop and implement certification requirements for the operation of UAS in the national airspace system by December 31, 2015. (Public Law Number 112-095)

4. Makes it a crime for a person to look through a hole or opening or otherwise view, by means of any instrumentality, the interior of bedrooms, bathrooms, and various other areas in which an occupant has a reasonable expectation of privacy, with the intent to invade the privacy of one or more persons inside. (PC 647(j)(1).)
   
   

5. Requires law enforcement, in certain instances, to obtain a warrant to search a person or a person’s property and states that a search warrant is 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. (PC Section 1523)

6. Defines physical invasion of privacy in terms of trespassing in order to capture an image, sound recording or other impression in certain circumstances. It also defines constructive invasion of privacy as attempting to capture such an impression under circumstances in which the plaintiff had a reasonable expectation of privacy. (California Civil Code Section 1708.8)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Purpose of this bill. This bill is intended to establish a comprehensive set of parameters for the use of UAS, commonly known as “drones,” by law enforcement and public agencies over public and private spaces in California. This measure is author-sponsored.
   
   

2. Author’s statement. According to the author, “We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be a great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to track the fire in real time, allowed commanders to move firefighters out of harm’s way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies."

"In 2013, my local Sheriff attempted to purchase a drone and hide it from the public. When the public found out, the frustration, concern and backlash forced my sheriff to abandon his pursuit of the drone. While he eventually did succeed in purchasing a drone, this time he is working on an operations manual to inform the public on the guidelines his department will follow when deploying a drone. Though still being drafted, it will be made public.

"AB 56 will establish a set of parameters for the use of drones in public and private spaces. It restricts the sharing of data between agencies (public and law enforcement) to prevent the roundabout tracking of individuals. Additionally, this bill will create accountability within the law enforcement community by requiring that they provide notice to their governing agency or public on what they intend to use (and not to use) drones for. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use.”

3. What is a UAS? The FAA defines a UAS as an unmanned aircraft and all of the associated support equipment, control station, data links, telemetry, communications and navigation equipment necessary to operate the unmanned aircraft. A UAS is flown either by a pilot via a ground control system or autonomously through use of an on-board computer, communication link and any additional equipment used to operate the UAS.
   
   
   

4. FAA regulation of UAS. Current FAA rules prohibit UAS use in FAA airspace but allow commercial users to apply for an exemption from the FAA rules along with an FAA Certificate of Authorization (COA) permitting commercial uses, such as real estate marketing, wedding photography, television, film, mapping, and land surveys. Federal, state and local government agencies, law enforcement, and public colleges and universities can also receive a COA from the FAA authorizing specific uses of UAS for specific time periods.
   
   On February 15, 2015, the FAA published proposed a new framework of regulations for the use of UAS in national airspace, i.e., above 400 feet, which would allow the routine use of certain small UAS (under 55 pounds). The proposed rules would limit flights to non-recreational, daylight, visual-line-of-sight operations. The rules also address height restrictions, operator certification, aircraft registration and marking, and operational limits. The proposed rules discuss the possibility of a more flexible regulatory framework for “micro” UAS (under 4.4 pounds). This bill deals with regulation of UAS below FAA airspace, i.e., below 400 feet.
   
   
   

5. The potential and the peril of UAS. Despite the media and public attention on the use of UAS in the context of weapons deployment and terrorism, UAS have myriad practical applications. For example, UAS can be used to survey damage, locate victims, and assess threats in natural and manmade disasters without risking the lives of rescue workers. UAS can be used in agriculture to observe and measure crops while conserving resources and avoiding the use of heavy equipment. UAS can also give the media safe, economical, and environmentally-friendly access to aerial views for news broadcasts when compared to the current use of helicopters and other manned aircraft. Some law enforcement agencies have acquired UAS for the intended use in emergency situations such as hostage-taking, school shootings, and kidnapping-related crimes.
   
   However, the need for a comprehensive set of laws governing the use of UAS is undisputed in light of the profound effect an UAS could have on personal privacy. UAS equipped with cameras, microphones, Internet or wireless connections, and remote controls have enormous potential to invade personal space if used, for example, to hover at low heights over fenced backyards, outside the windows of homes, or over the heads of individuals standing, walking, or sitting alone or in groups in public or even private spaces. Among other things, UAS could be used to capture close up images faces, body parts, or the personal property a person carries with them, and could be used to listen to private conversations carried on outdoors between people moving in public and private spaces.
   

6. Regulating law enforcement’s use of UAS. This bill was amended prior to this hearing to allow local law enforcement agencies to use UAS in public spaces only if the law enforcement agency obtains approval from the local governing body, i.e. city council or county board of supervisors. Under this bill, a state law enforcement agency, e.g., the Attorney General, would obtain approval from the Legislature before implementing a UAS program. For surveillance of private property, this bill requires a law enforcement agency to get either a search warrant or the consent of the person or entity with the legal authority to grant access to the property. The bill makes exceptions from these rules for emergencies.
   
   While the prior version of this bill would have only required law enforcement to provide a one-time public notice before using UAS, the current version of the bill establishes stronger protections for personal privacy and more public accountability by requiring a governing board to approve law enforcement’s use of UAS. The approval must happen at a regularly scheduled meeting where public comments can be made, and the approval must specify both the circumstances and the time limits on UAS use for each circumstance.

7. Regulating public agency use of UAS. This bill permits state and local agencies that are not law enforcement agencies to use UAS as long as the use comports with the core mission of the agency and the data gathered is not used for other purposes. Under this bill, public agencies must provide a one-time public announcement on the planned use and provide details on how the UAS technology works.

8. Restricting UAS data sharing. This bill restricts public agencies from sharing data collected using UAS, except in certain circumstances, and requires agencies to destroy UAS data after one year, with certain exceptions. Law enforcement can get access to data collected by a non-law enforcement agency if law enforcement would not have needed a search warrant to collect the data directly. If the data to be shared is about private property, then this bill requires law enforcement to present a search warrant or get consent from the person or entity with legal authority to grant access to the private property, which may be an owner or a tenant in the case of leased property. This bill allows public agencies to share UAS data with the public if it is required by law and as long as the images, footage, or data do not depict or describe any individual or group of individuals – or the activities of any individual or group of individuals – whose identity or identities could be ascertained from the images.
   
   
   

9. Prohibition on weaponized UAS. UAS have the capability of being armed with weapons, lethal and nonlethal. The U.S. has used armed UAS to target militants in military operations abroad. (“Drones Are Weapons of Choice in Fighting Qaeda,” New York Times, Mar. 17, 2009) Domestically, there has been a push by some law enforcement agencies to arm drones to fire rubber bullets and tear gas. (“Drones over US to get weaponized – so far, non-lethally,” RT.com, May 24, 2012) This bill would ban law enforcement agencies from arming UAS with weapons, launchable devices, or other capabilities that may cause incapacitation, injury, death, or property damage.
   
   
   

10. The Fourth Amendment and new technologies: The U.S. Constitution and the California Constitution guarantee the right of all persons to be secure from unreasonable searches and seizures. This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Arkansas v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds by California v. Acevedo, supra.)
    
    
    

Courts have been confronted with questions of how evolving technology intersects with the Fourth Amendment. In Kyllo v. United States (2001) 533 U.S. 27, the U.S. Supreme Court considered whether the use of a thermal imager, which detects infrared radiation invisible to the naked eye, to determine whether the defendant was growing marijuana in his apartment, was a search in violation of the Fourth Amendment. The Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Id. at p. 40.)

In United States v. Jones (2012) 132 S. Ct. 945, the Supreme Court was presented with a Fourth Amendment challenge to the use of a Global Positioning System (GPS) tracking device by law enforcement officers to monitor the movements of a suspected drug trafficker's vehicle over a period of 28 days. The Court held that the government's installation of the GPS device on the defendant's private property for the purpose of conducting surveillance constituted a "search" under the Fourth Amendment. GPS technology is intrusive because it "generates a precise, comprehensive, record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future." (Id. at pp. 955-956.)

As technology evolves, the Legislature must consider how new technologies should be used in a way that carefully balances the need for public safety against the right to personal privacy. The Court's decisions in Kyllo and Jones provide some clues as to how courts may rule on law enforcement’s use of drones. Eventually, the courts may rule that the use of drones to conduct surveillance without a warrant is restricted by the Fourth Amendment. But until a case rises to the 9^th Circuit or the U.S. Supreme Court, any restrictions on the use of UAS by law enforcement and other public agencies are left up to the Legislature and local governments.

11. Constitutional law on the use of aircraft over private property. In considering the specific question of when a person has a reasonable expectation of privacy in the airspace around his or her home, courts have consistently held that while the Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures, it does not guarantee privacy. For example, the U.S. Supreme Court in 1986 ruled that police did not violate the Fourth Amendment when they rented a private plane and viewed the defendant’s yard (where he was growing marijuana) from an altitude of 1,000 feet, despite the fact that the yard was surrounded by a 6-foot outer fence and a 10-foot inner fence. (Cal. v. Ciraolo (1986) 476 U.S. 207, 209.) The Court observed that the defendant’s expectation of privacy in his backyard was unreasonable.
    
    That the backyard and its crop were within the “curtilage” of respondent's home did not itself bar all police observation. The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observation from a public vantage point where he has a right to be and which renders the activities clearly visible. The police observations here took place within public navigable airspace, in a physically nonintrusive manner. (Id. at p. 215.)

12. California local government action on UAS. Several local governments in California are considering allowing law enforcement to use UAS in their jurisdictions. On April 8, 2015, the San Jose Neighborhoods Commission endorsed a 12-month pilot project allowing the San Jose police department to test UAS. The San Jose City Council is expected to approve the pilot project, which would begin in 2017. (“Controversial Police Drone Inches Closer To Flight In San Jose,” San Jose Mercury News, April 9, 2015.)

In 2014, the Los Angeles (L.A.) Police Department acquired two UAS from the Seattle Police Department. Following public criticism, the L.A. City Council called on the L.A. Police Commission to develop a policy on the use of UAS before LAPD deploys them. The city’s policy is still in development. (“LAPD’s 2 Drones Will Remain Grounded During Policy Review, Police Commission Says Amid Protest,” KTLA5, September, 14, 2014; and “LA City Council Instructs LAPD, Commission, To Create Drone-Use Criteria,” ABC7, October 28, 2014.)

In 2013, the Alameda County Sheriff’s Department purchased two UAS using the Department's own funds and without public notice or approval from the Alameda County Board of Supervisors. (“Alameda County Sheriff Reveals that He’s Bought 2 Drones,” S.F. Gate (Dec. 3, 2014).

Generally speaking, local communities throughout California have become very involved in debates over the use of UAS, which arguably should help shape UAS uses and restrictions to suit a local community’s particular needs and concerns. Some city councils and county boards of supervisors may ultimately find specific uses of UAS appropriate and acceptable. In 2014, the Legislature passed AB 1327 (Gorell), which would have required all law enforcement agencies to obtain a search warrant before any use of UAS, except for certain emergencies. However, AB 1327 was vetoed by the Governor on the grounds that the exceptions for emergencies were too narrowly drafted.

Given the deliberative process local governments are undertaking with regard to the use of UAS, this bill may be an appropriate approach to the regulation of UAS.

13. The Governor’s veto of AB 1327 (Gorell). As noted above, Governor Jerry Brown vetoed AB 1327 (Gorell) of 2014, which would have required law enforcement agencies to obtain a warrant, except in emergencies such as a hostage situation or a fire, before deploying UAS. In his veto message, Governor Brown stated:

"This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances.

"There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution."

14. Arguments in opposition. The California State Sheriff’s Association states in opposition that “we must oppose the provisions that require prior approval from a local governing body before the use of [UAS]. First, we believe that such prior approval would hinder the deployment of [UAS] during emergency situations such as search and rescue operations and wildfires. Moreover, the provisions requiring permission from adjacent counties or cities would likewise hinder responses when [UAS] are used to provide mutual aid and assistance to other counties. Finally, we believe this would set an unwarranted and inappropriate precedent by limiting the authority of a duly elected sheriff to manage the functions of his or her own agency.”

The American Civil Liberties Union of California stated in opposition to a prior version of the bill which would have only required a one-time notice prior to law enforcement UAS use, "AB 56 would grant unprecedented and unconstitutional surveillance powers to the state. For example, by allowing unlimited use of a drone over all public lands, highways, and spaces open to the public, law enforcement would be able to track anyone, including by following them around any time they are in public, which would appear to include all commercial areas open to the general public, without any judicial oversight or cause to suspect wrongdoing. Additionally, AB 56 would authorize warrantless surveillance of activities protected by the First Amendment, such as protest rallies, which has led to documented abuses by law enforcement. Law enforcement should not be authorized to perform such wide-ranging surveillance without a warrant supported by probable cause."

15. Related legislation. AB 14 (Waldron) creates the Unmanned Aircraft Systems Task Force, comprised of 10 members; requires the task force to research, develop, and formulate a comprehensive state policy for UAS; and requires the task force to submit a policy draft and suggested legislation pertaining to UAS to the Governor, the Governor’s Office of Business and Economic Development, and the Legislature on an ongoing basis or before January 1, 2018. AB 14 failed passage in the Assembly Transportation Committee on a 5-9 vote.
    
    
    

SB 142 (Jackson) extends liability for wrongful occupation of real property and damages to a person who without permission operates an UAS below the navigable airspace overlaying the real property. SB 142 is currently pending on the Senate Floor.

SB 170 (Gaines) creates a felony crime for the use of an UAS to deliver contraband into a prison or county jail and creates a misdemeanor crime for the use of UAS over a prison or capture images of a prison. SB 170 is currently pending in the Senate Appropriations Committee, where it will be heard on May 4, 2015.

SB 262 (Galgiani) is similar in part to this bill, because it authorizes a law enforcement agency to use an UAS if obtains approval from its governing body. For surveillance of private property, SB 262 requires either a warrant or permission from the person or entity with the legal authority to grant access to the property, but makes exceptions to these rules in emergencies. SB 262 passed the Senate Public Safety Committee April 14, 2015 on a 5-1 vote, and is currently pending in the Senate Judiciary Committee, where it will be heard on May 5, 2015.

16. Prior legislation. AB 1327 (Gorell) of 2014 would have regulated the use of UAS by public agencies and the dissemination and use of any images, data and footage obtained by those systems. AB 1327 was vetoed by the Governor.
    
    
    

AB 1326 (Gorell) would have provided tax exemptions relative to the construction of new manufacturing plants and for the purchase of machinery used to manufacture UAS. AB 1326 failed passage in the Assembly Appropriations Committee.

AB 2306 (Chau), Chapter 858, Statutes of 2014, expanded a person’s potential liability for constructive invasion of privacy, by removing the limitation that the person use a visual or auditory enhancing device, and instead made the person liable when using any device to engage in the specified unlawful activity.

AJR 6 (Fox), Resolution Chapter 78, Statutes of 2013, requested the FAA to consider California as one of the six planned test sites for UAS and integration of those systems into the next generation air transportation system.

SB 15 (Padilla) of 2013 would have imposed a search warrant requirement on law enforcement agency use of a UAS in certain circumstances, would have applied existing civil and criminal law to prohibited activities with devices or instrumentalities affixed to, or contained within a UAS, and would have prohibited equipping a UAS with a weapon, and would have prohibited using an UAS to invade a person's privacy. SB 15 failed passage in the Assembly Public Safety Committee.

17. Double-referral. This bill was double-referred to the Assembly Public Safety Committee, where it was heard on April 14, 2015, and passed on a 6-0 vote.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file.

Opposition

California State Sheriffs’ Association

American Civil Liberties Union (ACLU) (4/8/2015 version)

Analysis Prepared by: Jennie Bretschneider / P. & C.P. / (916) 319-2200

Date of Hearing: April 14, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 56

Author:(Quirk) – As Amended prVer:April 8, 2015

SUMMARY:

Regulates the use of unmanned aircraft systems (UAS) by public agencies. Specifically, this bill:

1. Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system.
   
   

2. Prohibits a public agency from using an UAS, or contracting for the use of an UAS, except as provided in the provisions of this bill.
   
   

3. States that a law enforcement agency may use an UAS over public lands, highways and spaces open to the public without a warrant.
   
   

4. Authorizes a law enforcement agency to use an UAS under 400 feet above ground level over private property if it has obtained consent from the property owner or a warrant based on probable cause.
   
   

5. Allows a law enforcement agency, without first obtaining a warrant or consent from the property owner over private property, to use an UAS in the following circumstances:
   
   

   1. In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to fires, hostage crises, "hot pursuit" situations if reasonably necessary to prevent harm to law enforcement officers or others; and search and rescue operations on land or water;
      
      

   2. To assess the necessity of first responders and process scenes in situations relating to traffic accidents;
      

   3. To document traffic collision and crime scenes;
      
      

   4. To inspect state parks and wilderness areas for illegal vegetation or fires regardless of permanent improvements or temporary human habitation; and,
      
      

   5. To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills.
      
      

6. Allows a public agency, other than a law enforcement agency, to use an UAS, or contract for the use of an UAS, to achieve the core mission of the agency provided that the purpose is unrelated to the gathering of criminal intelligence.
   
   

7. States that a public agency that is not primarily a law enforcement agency, but that employs peace officers or performs functions related to criminal investigations, may use an UAS without obtaining a warrant to achieve the core mission of the agency, provided that the purpose is unrelated to the gathering of criminal intelligence, and that the images, footage, or data are not used for any purpose other than that for which it was collected.
   
   

8. Defines "criminal intelligence" as information compiled, analyzed, or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity.
   
   

9. Requires reasonable notice to be provided by a public agency and a law enforcement agency prior to using an UAS, or contracting for the use of an UAS, as specified below:
   
   

   1. A public agency shall provide reasonable notice to the public that, at a minimum, consists of a one-time announcement regarding the agency's intent to deploy UAS technology and a description of the technology’s capabilities to the public; and
      
      

   2. A law enforcement agency shall provide reasonable notice to the public or to the governing board, or the agency may create a set of guidelines that will be made available to the public, that at a minimum, consists of a one-time announcement regarding the agency's intent to deploy unmanned aircraft system technology, a description of the technology's capabilities, and what it will and will not be used for.
      
      

10. States that, except as permitted by the provisions in this bill, images, footage, or data obtained by a public agency, or any entity contracting with a public agency, over private property and pursuant to this bill shall not be disseminated to a law enforcement agency unless the law enforcement agency has obtained consent from the property owner or a warrant for the images, footage, or data based on probable cause, or the law enforcement agency would not have been required to obtain a warrant to collect the images, footage, or data itself as specified.
    
    

11. Allows a public agency that is not primarily a law enforcement agency, but that employs peace officers or performs functions related to criminal investigations, to disseminate images, footage, or data collected by the use of an UAS if the dissemination is to others within that agency.
    
    

12. Prohibits disseminating the images, footage, or data to entities outside the collecting public agency, unless one of the following circumstances applies:
    
    

    1. To another public agency if the images, footage, or data are related to the core mission of both public agencies involved in the sending or receiving of the images, footage, or data;
       
       

    2. To an entity outside the collecting public agency if the images, footage, or data are evidence in any claim filed or any pending litigation; or
       
       

    3. To a private entity if both of the following conditions are satisfied:

1. The collecting public agency is not a law enforcement agency; and,
   
   

2. The images, footage, or data are related to the core function of the collecting public agency.
   
   

1. Allows a public agency to make available to the public images, footage, or data obtained by the public agency through the use of an UAS if both of the following conditions are satisfied:
   
   

   1. The images, footage, or data do not depict or describe any individual or group of individuals, or the activities of any individual or group of individuals whose identity or identities can be ascertained; and,
      
      

   2. The disclosure of the images, footage, or data is required to fulfill the public agency's statutory or mandatory obligations.
      
      

2. Prohibits, except as permitted by the provisions of this bill, public agencies from using images, footage, or data obtained by a public agency through the use of an UAS for any purpose other than that for which it was collected.
   
   

3. Requires images, footage, or data obtained through the use of an UAS to be permanently destroyed within one year, except in the following circumstances:
   
   

   1. For training purpose, as specified.
      
      

   2. For academic research or teaching purposes, as specified.
      
      

   3. For purposes of monitoring material assets owned by the public agency.
      
      

   4. For environmental, public works, or land use management or planning by the public agency.
      
      

   5. The images, footage or data are evidence currently being used, or anticipated to be used, in a criminal proceeding.
      
      

4. States, notwithstanding the above provision, a public agency may retain beyond one year images, footage, or data in the following circumstances:
   
   

   1. If a warrant authorized the collection of the images, footage, or data.
      
      

   2. If the images, footage, or data are evidence in any claim filed or any pending litigation or enforcement proceeding.
      
      

5. Prohibits a person, entity, or public agency from equipping or arming an UAS with a weapon or other device that may be carried by or launched from an UAS and that may cause bodily injury or death or damage to, or the destruction of, real or personal property, unless authorized by federal law.
   
   

6. Provides that all UAS shall be operated so as to minimize the collection of images, footage, or data of persons, places, or things not specified with particularity in the warrant authorizing the use of an unmanned aircraft system, or, if no warrant was obtained, for purposes unrelated to the justification for the operation.
   
   

7. States that none of the provisions in this bill are intended to conflict with or supersede federal law, including rules and regulations of the Federal Aviation Administration (FAA); and authorizes a local legislative body to adopt more restrictive policies on the acquisition or use of unmanned aircraft systems.
   
   

8. Prohibits a person, entity, or public agency from equipping or arming an UAS with a weapon or other device that may be carried by or launched from an UAS and that may cause bodily injury or death or damage to, or the destruction of, real or personal property.
   
   

9. Provides that surveillance restrictions on electronic devices shall also apply to UAS.
   
   

10. States that none of the provisions above are intended to conflict with or supersede federal law, including rules and regulations of the Federal Aviation Administration (FAA).
    
    

11. Provides that notwithstanding any other provision, images, footage or data obtained through the use of the unmanned aircraft system or any related record, including but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system, are public records subject to disclosure.
    
    

12. Clarifies that nothing in this bill or any other law requires the disclosure of images, footage, or data obtained through the use of an UAS, or any related record that identify any person or entity that subsequently obtains or requests records of that system, to the extent that disclosure of the images, footage, data, or records would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation.

EXISTING FEDERAL LAW: The Aviation Administration Modernization and Reform Act of 2012 provides for the integration of civil UAS, commonly known as drones, into the national airspace system by September 30, 2015. The Act requires the Administrator of the FAA to develop and implement operational and certification requirements for the operation of public UAS in the national airspace by December 31, 2015. (H.R. 658 2011-12, Section 332.)

EXISTING STATE LAW:

1. States that a search warrant is 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. (Pen. Code, § 1523.)
   
   

2. Permits a search warrant to be issued for any of the following grounds:

1. When the property subject to search was stolen or embezzled;
   
   

2. When property or things were used as the means to commit 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, as specified, 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 or things to be seized include an item or any evidence that tends to show a violation of a specified section of the Labor Code, or tends to show that a particular person has violated that section;

9. 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 as specified;

10. 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, specified persons;

11. 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, as specified, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a specified protective order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law;

12. When the information to be received from the use of a tracking device constitutes evidence that tends to show that either 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, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or 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;
    
    

13. When a sample of the blood of a person constitutes evidence that tends to show a violation of specified provisions in the Vehicle Code relating to driving under the influence offenses 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 as specified; and,
    
    

14. Beginning January 1, 2016, 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 restraining order, as specified. (Pen. Code, § 1524, subd. (a).)

3. Prohibits wiretapping or eavesdropping on confidential communications, which excludes communications made in public or in any circumstance that the parties may reasonably expect that the communication may be overheard or recorded. (Pen. Code, § 632, subd. (c).)
   
   

4. Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record. (Pen. Code, § 633.)
   
   

5. California Public Records Act generally provides that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code, § 6250 et. seq.)
   
   

6. Provides that public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. (Gov. Code, § 6253)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be of great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to tract the fire in real time, allowed commanders to move firefighters out of harm’s way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies.

"In 2013, my local Sheriff attempted to purchase a drone and hide it from the public. When the public found out, the frustration, concern and backlash forced my sheriff to abandon his pursuit of the drone. While he eventually did succeed in purchasing a drone, this time he is working on an operations manual to inform the public on the guidelines his department will follow when deploying a drone. Though still being drafted, it will be made public.

"AB 56 will establish a set of parameters for the use of drones in public and private spaces. It restricts the sharing of data between agencies (public and law enforcement) to prevent the roundabout tracking of individuals. Additionally, this bill will create accountability within the law enforcement community by requiring that they provide notice to their governing agency or public on what they intend to use (and not to use) drones for. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use."

2. Fourth Amendment Considerations: Technology and Warrantless Searches: Both the United States and the California constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, sec. 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Arkansas v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds by California v. Acevedo, supra.)
   
   

Courts have been confronted with questions of how evolving technology intersects with the Fourth Amendment. In Kyllo v. United States (2001) 533 U.S. 27, the U.S. Supreme Court considered whether the use of a thermal imager, which detects infrared radiation invisible to the naked eye, to determine whether the defendant was growing marijuana in his apartment, was a search in violation of the Fourth Amendment. The Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Id. at p. 40.)

In United States v. Jones (2012) 132 S. Ct. 945, the Supreme Court was presented with a Fourth Amendment challenge to the use of a Global Positioning System (GPS) tracking device by law enforcement officers to monitor the movements of a suspected drug trafficker's vehicle over a period of 28 days. The Court held that the government's installation of the GPS device on the defendant's private property for the purpose of conducting surveillance constituted a "search" under the Fourth Amendment. GPS technology is intrusive because it "generates a precise, comprehensive, record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future." (Id. at pp. 955-956.)

Because technology is always evolving it is important to consider how new technology should be regulated in order to avoid governmental abuse. The Court's decisions in prior cases provide some guidance on how new technology may be evaluated within the framework of the Fourth Amendment's protections against unreasonable searches and seizures. As illustrated in Kyllo and Jones, even in a public space, the use of advanced technology to conduct surveillance without a warrant may be restricted by the Fourth Amendment.

3. Reasonable Notice Requirement: This bill requires a public agency to provide reasonable notice to the public before deploying UAS technology. The bill specifies that at minimum, reasonable notice requires the agency to provide a one-time announcement regarding the agency's intent to deploy UAS technology and a description of the technology’s capabilities to the public. A law enforcement agency must provide reasonable notice to the public or to the governing board. Alternatively, the law enforcement agency may create a set of guidelines that will be made available to the public. The reasonable notice by a law enforcement agency must, at a minimum, consist of a one-time announcement regarding the agency's intent to deploy unmanned aircraft system technology, a description of the technology's capabilities, and what it will and will not be used for.
   
   The proposed use of UAS by law enforcement has been a divisive issue for some local jurisdictions. Public outcry against the unrestrained use of UAS by the government has led some counties to reconsider their use. In 2013, the sheriff of Alameda County attempted to request funding for UAS by the County Board of Supervisors. The sheriff pulled the item from consideration after public criticism. At the end of 2014, it was revealed that the Alameda County Sheriff went ahead and purchased the UAS using the department's own funds. Critics, including the American Civil Liberties Union, described the issue as "'a troubling example of law enforcement trying to acquire invasive and extremely unpopular surveillance technology in secret."' (Lee, Alameda County Sheriff Reveals that He’s Bought 2 Drones, S.F. Gate (Dec. 3, 2014).)
   
   San Jose, after purchasing an UAS, was also met with a hostile response for not informing the public of the device either before or after its purchase. San Jose police issued a statement acknowledging that the department 'should have done a better job of communicating the purpose and acquisition of the (drone) to [the] community. The community should have the opportunity to provide feedback, ask questions, and express their concerns before we move forward with this project.' (Lee, Alameda County Sheriff Reveals that He’s Bought 2 Drones, S.F. Gate (Dec. 3, 2014).)
   
   This bill requires reasonable notice to be provided to the public or the governing board, specifically requiring agencies to provide information on the technological capabilities of the UAS and the purpose of using the UAS. The bill does specifically require input from the public, however, providing notice will provide the public a chance evaluate the proposal. It may also trigger the public to reach out to members of their local legislative body to express concerns over the use of UAS. The local legislative body is expressly authorized under the provisions of this bill to adopt more restrictive policies on the acquisition or use of unmanned aircraft systems.

4. Weaponized UAS: UAS devices have the capability of being armed with weapons, lethal and nonlethal. The United States has used armed UAS to target militants in military operations abroad. (Christopher Drew, Drones Are Weapons of Choice in Fighting Qaeda, New York Times (Mar. 17, 2009).) Domestically, there has been a push by some law enforcement agencies to arm UAS to fire rubber bullets and tear gas. (See Drones over US to get weaponized – so far, non-lethally, RT.com (May 24, 2012).) This bill would prohibit the equipping or arming of an UAS with a weapon or other launchable device that may cause injury, death, or property damage.
   
   

5. Argument in Support: None submitted.
   
   

6. Argument in Opposition: According to the American Civil Liberties Union of California, "As amended, AB 56 would grant unprecedented and unconstitutional surveillance powers to the state. For example, by allowing unlimited use of a drone over all public lands, highways, and spaces open to the public, law enforcement would be able to track anyone, including by following them around any time they are in public, which would appear to include all commercial areas open to the general public, without any judicial oversight or cause to suspect wrongdoing. Additionally, AB 56 would authorize warrantless surveillance of activities protected by the First Amendment, such as protest rallies, which has led to documented abuses by law enforcement. Law enforcement should not be authorized to perform such wide-ranging surveillance without a warrant supported by probable cause.
   
   "By creating a categorical warrant exception for any law enforcement use of drones over public lands, AB 56 implies there is no expectation of privacy from being surveilled by a drone so long as the drone is over a public area – even for people in their bedrooms. As amended, the bill appears to allow law enforcement officers to look into upper story windows without a warrant being provided that the drone is over a public street. The right to privacy in personal areas should not be lost simply because the drone is over public land. This kind of invasive spying authorized by AB 56 is not consistent with reasonable expectations of privacy and appears to be in violations of both article 1 § 1 of the California Constitution and the Fourth Amendment to the US Constitution.
   
   . . .
   
   "We also note that the public-notice provision of Section 14351 is so negligible as to be irrelevant. Drones present a fundamentally new and intrusive threat to privacy that should be subject to initial controls and ongoing oversight by elected officials following a full assessment of the privacy impacts and informed public input before money is sought for their purchase of their use is authorized. The ACLU of California conducted a comprehensive assessment of surveillance technology and issued a report outlining essential processes and minimum standards for local adoption of drones and other intrusive devices. (Making Smart Decisions About Surveillance: A Guide for Communities.) AB 56 falls far short of the minimum requirements and approvals that should be in place before police are permitted to use drones. In addition, the bill omits any requirement for public notice and input prior to the use of drones that are borrowed from another police department or other agency."
   
   

7. Related Legislation: SB 262 (Galgiani) would authorize a law enforcement agency to use UAS if the use of the UAS complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law applicable to the use of an unmanned aircraft system, a law enforcement agency, state law applicable to a law enforcement agency's use of surveillance technology that can be attached to an UAS. SB 262 is pending hearing by the Senate Committee on Public Safety.
   
   

8. Prior Legislation:
   
   

   1. AB 1327 (Gorell), of the 2013 to 2014 Legislative Session, would have regulated the use of UAS by public agencies and the dissemination and use of any images, data and footage obtained by those systems. AB 1327 was vetoed.
      
      

   2. SB 15 (Padilla), of the 2013-2014 Legislative Session, would have required law enforcement to get a warrant for drone use if it implicated a legitimate expectation of privacy. Would have limited drone use by public agencies to within the scope of the agencies authority and prevented public agencies from providing drone information to law enforcement without a warrant. Would have directed public agencies to destroy drone information after one year except as specified. SB 15 was held in this Committee.
      
      

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

American Civil Liberties Union of California

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744