Under existing law, a city or county is empowered to perform duties including providing for public safety and law enforcement. A city or county is authorized, either directly or indirectly, to prescribe policies and regulations for law enforcement agencies under its jurisdiction.

This bill would, beginning July 1, 2019, require each law enforcement agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified. The bill would require the law enforcement agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require the law enforcement agency to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used. The bill would require the policy and any amendments to be posted on the agencys Internet Web site. The bill would also require the agency to make specified reports, at approved intervals, concerning the use of surveillance technology, and to make those reports available on the agencys Internet Web site. The bill would prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorneys fees and costs. The bill would require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified. The bill would authorize an agency to temporarily use surveillance technology during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances, except as specified.

The bill would also establish procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies. The bill would, among other things, require that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agencys Internet Web site. The bill would also require that if these agencies intend to acquire surveillance technology, they provide 90 days advance notice on the agencys Internet Web site, as specified.

The bill would make legislative findings in support of these provisions.

Because this bill would impose additional requirements on local public agencies, it would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

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, with regard to certain mandates, no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Under existing law, a city or county is empowered to perform duties including providing for public safety and law enforcement. A city or county is authorized, either directly or indirectly, to prescribe policies and regulations for law enforcement agencies under its jurisdiction.

This bill would, beginning July 1, 2019, require each law enforcement agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified. The bill would require the law enforcement agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require the law enforcement agency to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used. The bill would require the policy and any amendments to be posted on the agencys Internet Web site. The bill would also require the agency to make specified reports, at approved intervals, concerning the use of surveillance technology, and to make those reports available on the agencys Internet Web site. The bill would prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorneys fees and costs. The bill would require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified. The bill would authorize an agency to temporarily use surveillance technology during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances, except as specified.

The bill would also establish procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies. The bill would, among other things, require that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agencys Internet Web site. The bill would also require that if these agencies intend to acquire surveillance technology, they provide 90 days advance notice on the agencys Internet Web site, as specified.

The bill would make legislative findings in support of these provisions.

Because this bill would impose additional requirements on local public agencies, it would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

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, with regard to certain mandates, no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Under existing law, a city or county is empowered to perform duties including providing for public safety and law enforcement. A city or county is authorized, either directly or indirectly, to prescribe policies and regulations for law enforcement agencies under its jurisdiction.

This bill would, beginning July 1, 2019, require each law enforcement agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified. The bill would require the law enforcement agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require the law enforcement agency to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used. The bill would require the policy and any amendments to be posted on the agencys Internet Web site. The bill would also require the agency to make specified reports, at approved intervals, concerning the use of surveillance technology, and to make those reports available on the agencys Internet Web site. The bill would prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorneys fees and costs. The bill would require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified. The bill would authorize an agency to temporarily use surveillance technology during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances, except as specified.

The bill would establish separate procedures for a sheriffs department or a district attorney to establish their own Surveillance Use Policies, instead of submitting them through their governing body. The procedures would include holding a noticed public hearing on the proposed policy, posting the policy on the departments Internet Web site, amending the policy to include new types of surveillance technology, and publishing a biennial report regarding the departments use of surveillance technology, as specified.

The bill would also establish procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies. The bill would, among other things, require that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agencys Internet Web site. The bill would also require that if these agencies intend to acquire surveillance technology, they provide 90 days advance notice on the agencys Internet Web site, as specified.

The bill would make legislative findings in support of these provisions.

Because this bill would impose additional requirements on local public agencies, it would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

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, with regard to certain mandates, no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1186

Author:(Hill) – As Amended Ver:May 25, 2018

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

SUMMARY:

This bill requires law enforcement agencies, as specified, to have an approved Surveillance Use Policy that is made publicly available. Specifically, this bill:

1. Requires, by July 1, 2019, local law enforcement agencies and police departments of the University of California (UC), California State University (CSU) and Community Colleges that use or access information from surveillance technology, to submit to its governing body a Surveillance Use Policy to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. Requires the governing body to consider adopting the policy and specifies that the law enforcement entity cannot use surveillance technology if the governing body does not adopt the policy. Requires new surveillance technology to be covered under amendments to the policy.
   
2. Requires, by July 1, 2019, the Department of Justice (DOJ) and the Department of the California Highway Patrol (CHP) to adopt surveillance use policies that ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties. Requires new surveillance technology to be covered under amendments to the policy.
   
3. Specifies certain content required in each Surveillance Use Policy, including a process to maintain a record of access of the surveillance technology or information collected by the technology such as when the information is accessed and the name of the employee accessing the information.
   
4. Allows a civil action to be brought by an individual harmed by a violation of the Surveillance Use Policy against a person who knowingly caused a violation of a surveillance policy.
   

FISCAL EFFECT:

1. Significant costs (GF, federal funds, and special funds) for DOJ to establish and implement a surveillance use policy. Specifically, DOJ reports needing six additional positions and $477,000 in 2018-19 and $830,000 in 2019-20 and ongoing.
2. Onetime costs (Motor Vehicle Account) of about $500,000 for CHP to develop a database.
3. Unknown costs for UC, CSU, and Community College systems to develop and implement surveillance use policies. To the extent that higher education police departments use surveillance technology, costs are likely to be in the range of hundreds of thousands of dollars per policy development and implementation.
4. Unknown significant potentially reimbursable mandated local costs, possibly in the millions of dollars, for local law enforcement agencies to develop and implement surveillance use policies.

COMMENTS:

1. Background and purpose. SB 34 (Hill) Chapter 532, Statutes of 2015, imposes various security, privacy, and public hearing requirements on the use of automated license plate recognition systems (ALPR), as well as a private right of action and provisions for remedies. SB 34 specifically required that a public agency that operates or intends to operate an ALPR system to provide an opportunity for public comment at a public meeting of the agency's governing body before implementing the program. This bill seeks to extend similar requirements to a much broader range of law enforcement surveillance technologies. According to the author:

SB 1186 applies standards established for automated license plate reader systems and cell-phone intercept devices to a broader array of surveillance devices used by law enforcement agencies. The bill would subject surveillance technologies to public disclosure, provide local legislative review of police surveillance uses, and require the use of a surveillance technology to be governed by a privacy policy.

1. Related legislation. SB 21 (Hill) of the current legislative session is substantially similar to this bill but also contained specific reporting requirements and additional public hearing requirements. SB 21 was held in this committee’s suspense file.
   

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 26, 2018

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

SBPCA Bill Id:SB 1186

Author:(Hill) – As Amended Ver:May 25, 2018

SENATE VOTE: 21-15

SUBJECT: Law enforcement agencies: surveillance: policies

SUMMARY: This bill would require specified law enforcement agencies to have a Surveillance Use Policy (SUP), approved by their governing bodies, in place before the use of surveillance technology, as defined. Specifically, this bill would:

1. Require, beginning July 1, 2019, that each law enforcement agency, as specified, submit to its governing body at a regularly scheduled hearing, open to the public, a proposed SUP for the use of each type of surveillance technology and the information to be collected.
2. Require specified law enforcement agencies to cease using the surveillance technology within 30 days if the proposed SUP is not adopted by the governing body.
3. Require law enforcement agencies to submit an amendment to the SUP, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used.
4. Require the SUP and any amendments to be posted on the agency’s website.
5. Prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the SUP.
6. Provide that any person may bring an action for injunctive relief to prevent a violation of these provisions and, if successful, may recover reasonable attorney’s fees and costs.
7. Require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified.
8. Authorize an agency to temporarily use surveillance technology during exigent circumstances without meeting the requirements of these provisions, provided that, among other things, the agency reports the acquisition or use of the surveillance technology to its governing body within 45 days of the end of the exigent circumstances.
9. Establish procedures for the Department of the California Highway Patrol (CHP) and the Department of Justice (DOJ) to establish their own SUPs. Would require, among other things, that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agency’s website. Would require, in the event that these agencies intend to acquire surveillance technology, that they provide 90 days advance notice on the agency’s website.
10. Define the following terms for the purposes of this chapter:
    1. “Exigent circumstances” to mean a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or the information it provides.
    2. “Governing body” to mean the elected body that oversees the law enforcement agency or an appointed overseeing body if there is no elected body that provides direct oversight of the law enforcement agency.
    3. “Law enforcement agency” to mean any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the CHP, and the DOJ.
    4. “Surveillance technology” to mean any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group.
       • This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.
       • This does not include standard public agency hardware and software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, such as televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.

EXISTING LAW:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., art. I, Sec. 1.)
2. Makes a person liable for “physical invasion of privacy” for knowingly entering onto the land of another person or otherwise committing a trespass in order to physically invade the privacy of another person with the intent to capture any type of visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. (Civ. Code Sec. 1708.8 (a).)
3. Makes a person liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Civ. Code Sec. 1708.8 (b).)
4. Requires that data collected through the use or operation of an automated license plate recognition (ALPR) system be considered as personal information subject to specified existing laws; requires an ALPR operator to maintain reasonable security procedures and practices to protect information from unauthorized access, as specified; creates a private right of action for individuals harmed by a knowing violation of ALPR restrictions; and requires a public agency that operates an ALPR to provide an opportunity for public comment at a regularly scheduled public meeting prior to implementing the technology. (Civ. Code Sec. 1798.90.5 et seq.)
5. Prohibits a local government or law enforcement agency from acquiring cellular communications interception technology unless approved by its legislative body at a regularly scheduled public meeting. Permits a county sheriff to acquire such technology after a public notice of the acquisition and adoption of a usage and privacy policy. (Gov. Code Sec. (c).)
6. Prohibits wiretapping or eavesdropping on confidential communications. (Pen. Code Sec. 630.)
7. 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. (Pen. Code Sec. 632.)
8. Requires law enforcement to obtain a search warrant or other court order before accessing certain data on an electronic device or from an online service provider. (Pen. Code Sec. 1546 et seq.)

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars to local law enforcement agencies to develop a policy that do not have one currently. The more unique types of surveillance technology that an agency uses likely would lead to additional costs to craft a policy section for each type. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)
2. The Department of Justice estimates compliance costs of around $1.8 million annually for new personnel to handle the increased workload associated with this measure. (General Fund, special funds*)
3. The California Highway Patrol estimates workload and programming costs of about $500,000 to develop a surveillance use policy and comply with the other provisions of this bill.
4. Unknown, potentially-significant cost pressures to the court to adjudicate lawsuits seeking to enjoin a law enforcement agency from violating the provisions of this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund**)

COMMENTS:

1. Purpose of the bill: This bill is intended to address transparency concerns related to law enforcement’s use of various kinds of surveillance technologies by requiring public notice and usage policies for law enforcement agencies that wish to use surveillance technology, which in some cases would also require local approval before deployment. This bill is author-sponsored.
2. Author’s statement: According to the author, “California enacted two laws, SB 34 (Hill, 2015) and SB 741 (Hill, 2015), which require law enforcement agencies to develop privacy and use policies for automatic license plate readers (ALPR) systems and a cell-phone intercept devices. These surveillance technologies are capable of collecting a wide-range of personal information. SB 34 and SB 741 also generally require a public discussion before ALPR systems or cell-phone intercept devices are used by law enforcement agencies.

SB 34 and SB 741 help to balance protecting civil liberties and privacy with law enforcement’s ability to use technology to fight crime, but these laws only apply to ALPR systems and cell-phone intercept devices. Similar privacy or transparency standards are not in place for other surveillance technologies used by law enforcement.

A wide array of surveillance technology is available to and used by law enforcement agencies. The Washington Post reported in 2016 that the ‘number of local police departments that employ some type of technological surveillance increased from 20 percent in 1997 to more than 90 percent in 2013.

The increased use of surveillances technology has serious implications for civil liberties and privacy. Surveillance technology allows law enforcement agencies to capture detailed information about where people go, who they associate with, and what they say. Protections should be established to ensure surveillance devices are only used for their intended purposes, to catch criminals and fight crime, and not to collect vast amounts of data on non-criminal residents.’”

1. Law enforcement surveillance technologies: The use of surveillance technologies by law enforcement can be useful in increasing public safety and aiding in the investigation of crimes. A recent article described how law enforcement in Fresno, California has embraced such surveillance technology as part of its operation:

On 57 monitors that cover the walls of the center, operators zoomed and panned an array of roughly 200 police cameras perched across the city. They could dial up 800 more feeds from the city’s schools and traffic cameras, and they soon hope to add 400 more streams from cameras worn on officers’ bodies and from thousands from local businesses that have surveillance systems.

The cameras were only one tool at the ready. Officers could trawl a private database that has recorded more than 2 billion scans of vehicle licenses plates and locations nationwide. If gunshots were fired, a system called ShotSpotter could triangulate the location using microphones strung around the city. Another program, called Media Sonar, crawled social media looking for illicit activity. Police used it to monitor individuals, threats to schools and hashtags related to gangs.

Fresno police said having the ability to access all that information in real time is crucial to solving crimes. (Jouvenal, The new way police are surveilling you: Calculating your threat ‘score’ Washington Post (Jan. 10, 2016) found at < https://www.washingtonpost. com /local/public-safety/the-new-way-police-are-surveilling-you-calculating-your-threat-score/2016/01/10/e42bccac-8e15-11e5-baf4-bdf37355da0c_story.html?utm_term= .a8099683bb30> [as of June 22, 2018].)

Such technology, however, can also pose a threat to civilian privacy, as information is collected about individuals who are not under investigation for any crimes. A coalition of groups including the American Civil Liberties Union of California, the California Immigrant Policy Center, and the Electronic Frontier Foundation (Coalition), in support, argue that such technologies are acquired and deployed in secret to the detriment of Californians. The Coalition writes:

Across the state, law enforcement officials are deciding behind closed doors to acquire and deploy powerful surveillance technologies, including drones, cell-site simulators, and social media monitoring software. All too often, law enforcement agencies acquire these intrusive devices in secret, with no opportunity for residents and local governing bodies to decide whether this high-tech surveillance is actually in the community’s interest.

The secretive and unaccountable use of surveillance technology affects all Californians and often disparately harms Black and other people of color, immigrants, Muslims, and political activists. Law enforcement agencies across the state track the locations of drivers with systems that Immigration and Customs Enforcement is actively working to access and exploit. In Oakland, police concentrated their deployment of license plate readers in low income and minority neighborhoods. In dozens of California communities, district attorneys and sheriffs purchased social media surveillance products marketed for the monitoring of Black Lives Matter and other peaceful activists. As the Trump Administration seeks ever-increasing surveillance and enforcement powers that can be turned on Muslims and immigrants, the sensitive information amassed by surveillance technologies in California is ripe for abuse.

1. Balancing the right of privacy with public safety: In an effort to ensure that communities benefit from the utility of surveillance technology while still protecting individuals’ civil liberties and privacy, this bill would create a structure by which law enforcement would be required to communicate with the public of its intention to use surveillance technology through a SUP, and require local government to approve the proposed policy at a public meeting. Thus, on a very fundamental level, this bill recognizes that law enforcement agencies are public servants, accountable to the communities in which they serve. As such, the measures that these agencies use to ensure public safety should be carefully considered with the needs of the community, because practices which undermine individuals’ civil liberties and fundamental right of privacy may not lead to the community feeling safer, and could very well have the reverse impact of undermining the public’s trust in law enforcement. Arguably, allowing SUPs to be regulated on a local level, rather than through state-wide legislation will ensure that communities and law enforcement agencies can tailor such policies closely to the unique needs of each community.
   
   Structurally, the bill would require law enforcement agencies to create a SUP covering the technologies they plan to use, along with how they may use those technologies, what information they will collect, who may use it, how long they will keep the data, and with whom they may share the data. Except in “exigent circumstances,” a SUP should be in place before surveillance technology is used or acquired, and SUPs must be updated if new technology is used or acquired.

These draft policies must be presented at a public hearing and the public must have an opportunity to comment before the policies may be approved and posted online. Notably, all law enforcement agencies except for the state DOJ and the CHP must have their policies adopted or amended by their governing body before they can go into effect and allow the agency to use the technology. The bill does not specify the governing body for each type of law enforcement agency, although it does provide that the body may be elected or appointed.

Specifically, any SUP would be required to include the following information:

• Authorized purposes for using the surveillance technology.
• Types of data that can be and is collected by the surveillance technology.
• A description of the job title or other designation of employees and independent contractors who are authorized to use the surveillance technology or to access data collected by the surveillance technology, and the training requirements for those persons.
• A description of how the surveillance technology will be monitored to ensure the security of the information and compliance with applicable privacy laws.
• The length of time information gathered by the surveillance technology will be retained, and a process to determine if and when to destroy retained information.
• Purposes of, process for, and restrictions on the sale, sharing, or transfer of information to other persons and whether, if so, how the collected information can be accessed by members of the public, including criminal defendants.
• A process to maintain a record of access of the surveillance technology or information collected by the surveillance technology, including: (1) the date and time the technology is used or the information is accessed; (2) the data elements the employee used to query the information; (3) the username of the employee who uses the technology or accesses the information; and (4) the purpose for accessing the information or using the technology.
• The existence of a memorandum of understanding or other agreement with another local agency or any other party, whether or not formalized, for the shared use of the surveillance technology or the sharing of the information collected through its use, including the identity of the parties.

The California Statewide Law Enforcement Association (CSLE) argues in opposition that this bill would pose a significant risk to public safety. CSLE writes, “[l]aw enforcement agencies already have a tough time staying ahead of the new technology and weaponry used in the commission of crimes in California communities. A heavy-handed policy such as SB 1186 would provide a ‘how to’ manual for circumventing crimes by making such surveillance technologies available to the public.”

The author responds that “[a] quick internet search will reveal what types of surveillance devices are used by police and how they work. SB 1186 would still allow for the use of these devices while providing protections for non-criminal civilians whose information is being captured. Additionally, law enforcement groups have not reported any loss in utility when it comes to using license plate readers and cell-phone intercept devices, which have almost the same policy requirement.”

On this same point, the California Civil Liberties Advocacy (CCLA) writes in support:

At a time when public opinion is becoming increasingly critical of police officers and the tactics employed in crime detection, it is absolutely essential that departments strive for greater transparency and public input when new technologies are employed to aid in criminal investigations. For several years now, the CCLA has openly rejected the false dichotomy that the adoption of new technologies is a total loss for citizen’s rights and vice versa. While it may be difficult to balance the two effectively, this does not mean that citizens’ legitimate privacy interests must be trumped in favor of emerging technologies—technologies that were likely designed with no consideration for the potential to invade a person’s privacy or chill free expression.

By ensuring that law enforcement tools and practices are open to public scrutiny, this will enhance both trust and confidence in the agencies and the officers, thus making SB 1186 a win-win for all interested parties, especially the public at large.

1. Differences between this bill and SB 21 (Hill, 2017): SB 21 (Hill, 2017) was introduced last year in an attempt to address the growing use of surveillance technology by law enforcement in a holistic way, rather than continuing to tackle each surveillance technology individually. With the exception of a few differences, SB 1186 is substantially similar to the version of SB 21 that was passed out of this Committee last year.

One notable difference between the two bills is that SB 21 authorized any person harmed by a violation of its provisions to bring a civil action, entitled that plaintiff to $2,500 in liquidated damages, and further authorized punitive damages for particularly egregious situations. SB 1186 instead allows any person to bring a civil action, but limits the remedy to injunctive relief, attorney’s fees, and costs.

SB 21 also required each law enforcement agency with a SUP to produce a Surveillance Technology Use Report detailing associated costs, uses, successes and failures, and violations of the policy. Such a report would have arguably been a valuable tool for a governing body and the public to analyze the use of surveillance technology and weigh its continuing value against any potential concerns. However, presumably to address fiscal concerns, the author removed the reporting requirement in the Senate Appropriations Committee.

Additionally, when it heard SB 21, this Committee amended the bill to include a number of provisions. The majority of those amendments, including clarifying the definition of “governing body,” excluding data hosting from the bill, and ensuring that the authority of governing bodies remains unaffected, are reflected in the current version of SB 1186. Two provisions are not included in the version that is before this Committee. The first is related to the reporting requirement. As noted above, while that language was in fact included in the introduced version of this bill, Senate Appropriations Committee amendments removed all provisions relating to the reporting requirement.

The second provision was an exemption for county sheriffs and district attorneys from the requirement that a governing board approve an agency’s SUP. This Committee’s analysis of SB 21 noted:

Existing law (see, e.g., Government Code 25303), authorizes county Boards of Supervisors to supervise the conduct of county officers, in addition to their budgetary role. However, the same statute also provides that this oversight authority does not extend to affecting the “independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and district attorney of a county. The board of supervisors shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county.”

Arguably, the power to disapprove a proposed use policy and thereby deny a sheriff's office or district attorney the ability to use surveillance technology that they already possessed for investigative purposes would appear to run directly counter to the demarcation of authorities in Government Code 25303. It does, however, appear clear that a board of supervisors would have the power to deny a funding request from a sheriff or DA to acquire such technology. Of course, new statute can always be written to override older statutes (but not constitutional provisions), so the author and the Committee may wish to consider whether or not such a significant and precedential change in the balance of power at the county level is warranted.

While district attorneys and county sheriffs were exempted from the requirement of local approval of proposed SUPs in SB 1186 as introduced, concerns raised in the Senate Judiciary Committee resulted in the removal of that exemption. Instead, the bill now provides that nothing in its provisions should be construed to limit the application of Government Code Section 25303. This should arguably ensure that county sheriff departments and district attorneys are required to submit SUPs to governing boards for approval, but those same governing boards would be prohibited from interfering with the investigatory or prosecutorial functions of those offices. Thus, as a practical matter, the bill in print will arguably achieve the same results as SB 21 as amended by this Committee last year.

Further, as noted in Comment 2 above, surveillance technologies collect information about criminals and suspected criminals, but they also collect information about individuals in the community that are not under investigation. Appropriately balancing the competing interests of maintaining public safety and ensuring individuals’ right to privacy should serve to enhance the community’s trust in law enforcement, which could ultimately increase public safety. In support, the Coalition writes, “[M]any California communities have already taken action to adopt rules and procedures like those contained in SB 1186, including Santa Clara County, Oakland, Davis, and Berkeley. Californians are re-asserting local control of their neighborhoods and protecting their communities by pushing back against intrusive and secretive surveillance practices. The legislature should extend these basic yet critical protections statewide. […] It’s time to make sure all Californians have a seat at the table. It’s time to enhance public safety by securing local power. It’s time to protect Californians from intrusive, discriminatory, and unaccountable deployment of law enforcement surveillance technology.”

1. Previous legislation: SB 21 (Hill, 2017) See Comment 5. SB 21 was held in the Assembly Appropriations Committee.

SB 466 (Bates, Ch. 163, Stats. 2017) expands a rental company’s ability to use, access, and obtain information relating to a renter’s use of a vehicle obtained through electronic surveillance technology when the vehicle is the subject of an AMBER Alert.

SB 34 (Hill, Ch. 532, Stats. 2015) established regulations on the privacy and usage of automatic license plate recognition data and expanded the meaning of “personal information” to include information or data collected through the use or operation of an ALPR system.

SB 741 (Hill, Ch. 659, Stats. 2015) established requirements that local agencies must fulfill before acquiring cellular communications interception technology.

SB 893 (Hill, 2014) would have placed restrictions on the use of automated license plate recognition technology by both public and private sector users. This bill died on the Senate Inactive File

1. Double-referral: This bill was double-referred to the Assembly Public Safety Committee, where it was heard on June 19, 2018, and passed on a 5 to 2 vote.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California

Anti Police-Terror Project

Asian Americans Advancing Justice

Asian law Alliance
California Civil Liberties Advocacy
California Immigrant Policy Center

Californians United for a Responsible Budget

California Public Defenders Association

Center for Policy Initiatives

Coalition for Human Immigrant Rights

Coalition for Justice and Accountability

Color of Change

Conference of California Bar Associations

Council on American-Islamic Relations – California

Criminal Justice Clinic, UC Irvine School of Law

Defending Rights & Dissent

Electronic Frontier Foundation

Ella Baker Center for Human Rights

Fair Chance Project

Freedom of the Press Foundation

Greenlining Institute

Immigrant Rights Clinic, UC Irvine School of Law

Indivisible California

Justice Teams Network

Lucy Parsons Labs

Media Alliance

Oakland Privacy

Our Family Coalition

Peninsula Peace and Justice Center

Presenté

San Francisco Peninsula People Power

San Jose Peace & Justice Center

TechLEAD San Diego

Tenth Amendment Center

The Utility Reform Network

TURN

Urban Peace Institute

Opposition

Association for Los Angeles Deputy Sheriffs
Association of the Orange County Deputy Sheriffs

California Association of Code Enforcement Officers

California Association of Joint Powers Authorities
California College and University Police Chiefs Association

California Narcotics Officers Association

California Police Chiefs Association, Inc.
California State Association of Counties

California State Sheriffs’ Association
California Statewide Law Enforcement Association
Fraternal Order of Police
League of California Cities

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs’ Association

San Bernardino County Sheriff

Analysis Prepared by: Nichole Rapier / P. & C.P. / (916) 319-2200

Date of Hearing: June 19, 2018

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1186

Author:(Hill) – As Amended Ver:May 25, 2018

SUMMARY: Requires local law enforcement agencies to have a policy, approved by the local governing body, in place before using surveillance technology, as defined. Specifically, this bill:

1. Provides that on or before July 1, 2019, a law enforcement agency that uses or accesses information from surveillance technology, shall submit to its governing body a Surveillance Use Policy to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties.
   
2. Provides that the Surveillance Use Policy shall be in writing and made publicly available on the Internet Web site prior to the public hearing and after adoption.
3. Provides that the governing body shall consider the policy for adoption by resolution or ordinance on the regular, nonconsent calendar at a regularly scheduled hearing.
   
4. Provides that on or before July 1, 2019, if the Department of Justice (DOJ) or the Department of the California Highway Patrol (CHP) use or access information from a surveillance technology, the agency shall adopt a Surveillance Use Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties. Further provides that policy shall be in writing and shall be made publicly available on the agency’s Internet Web site.
   
5. Specifies that each separate technology shall have its own section in the policy and specifies what the sections need to include.
   
6. Provides that on or after July 1, 2019, if a law enforcement agency intends to acquire a new type of surveillance technology after the adoption of the policy the agency shall submit an amendment to the policy to include the new type of technology as a new section of the policy and submit the amendment to its governing body for approval as provided.
   
7. Requires the amendment shall be submitted prior to requesting funds for acquiring, using, or accessing information from the technology and shall be submitted to the governing body at a properly noticed public meeting on the regular, nonconsent calendar and the governing body shall provide an opportunity for public comment before adopting the amendment.
   
8. Requires that the amendment shall be in writing and made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption. The governing body has 30 days to consider an amendment. If a submitted amendment is not adopted by the governing body, the law enforcement agency shall not request funds for, acquire, use, or access information from the new surveillance technology.
   
9. Provides that after July 1, 2019, if the DOJ or the CHP intends to acquire a new type of surveillance technology after the adoption of the policy required by subdivision (a), that agency shall draft an amendment to the policy to include the new type of technology as a new section of the policy. The agency shall post the amendment in writing and make it publicly available on its Internet Web site.
   
10. Provides that if the DOJ or the CHP are not in possession of surveillance technology on or before July 1, 2019, and acquire it after that date, that agency shall adopt a Surveillance Use Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties.
    
11. Provides that if before July 1, 2019, a law enforcement agency has implemented the requirements for automated license plate readers as provided for in law or cellular communications interception technology as provided for in law, the law enforcement agency shall include the required information as part of the Surveillance Use Policy.
    
12. Provides that if a law enforcement agency is not in possession of surveillance technology on or before July 1, 2019, and intends to acquire surveillance technology after that date, the law enforcement agency shall submit a Surveillance Use Policy to its governing body pursuant to these provisions.
    
13. Specifies that these provisions do not:
    
    1. Limit the authority of a governing body to exercise its authority in any way if a law enforcement agency makes a request to acquire surveillance technology;
       
    2. Prohibit a governing body from holding any public meeting required by this section jointly with another law enforcement agency or governing body; or
       
    3. Does not limit the application of other laws pertaining to the supervision of officers, the ability of the sheriff and district attorney to conduct independent investigations and prosecutions, or the budgetary authority of the Board of Supervisors over the sheriff and district attorney.
       
14. Specifies that nothing in this bill shall be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology.
    
15. Allows a civil action to be brought by an individual harmed by a violation of the Surveillance Use Policy against a person who knowingly caused a violation of a surveillance policy.
    
16. Defines the following terms for purposes of this bill:
    1. “Exigent circumstances” means “a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or information it provides;”
    2. “Governing body” means “the elected or appointed body that oversees the law enforcement agency or the law enforcement agency’s corresponding geographic area in the case of a county sheriff;”
    3. “Law enforcement agency” means “any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the CHP and the DOJ;” and
    4. “Surveillance technology” means “any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, international mobile subscriber identity trackers, global positioning system technology, radio-frequency identification technology, biometrics-identification technology, and facial-recognition technology.”
    5. Specifies that “Surveillance technology” does not include standard public agency computers and software, fingerprint scanners, ignition interlock devices, cellular telephones, two-way radios, or other similar electronic devices.

EXISTING LAW:

1) 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. (Cal. Const., art. 1, sec. 13.)

2) 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.)

3) Prohibits wiretapping or eavesdropping on confidential communications. (Pen. Code, § 630.)

4) 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. (Pen. Code, § 632.)

5) Allows eavesdropping or wiretapping by specified law enforcement officers or their assistants or deputies acting within the scope of his or her authority, when recording any communication that they could lawfully overhear or record. (Pen. Code, § 633.)

6) 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.)

7) 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.)

8) Makes a person liable for “physical invasion of privacy” for knowingly entering onto the land of another person or otherwise committing a trespass in order to physically invade the privacy of another person with the intent to capture any type of visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. (Civ. Code, § 1708.8, subd. (a).)

9) Makes a person liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Civ. Code, § 1708.8, subd. (b).)

10) Provides that a person who commits an invasion of privacy for a commercial purpose shall, in addition to any other damages or remedies provided, be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. Existing law defines “commercial purpose” to mean any act done with the expectation of sale, financial gain, or other consideration. (Civil Code § 1708.8 (d), (k).)

11) Requires that a public agency that operates or intends to operate an Automatic License Plate Recognition (ALPR) system to provide an opportunity for public comment at a public meeting of the agency's governing body before implementing the program. (Civil Code, § 1798.90.55.)

12) Prohibits a local agency from acquiring cellular communications interception technology unless approved by its legislative body. (Gov. Code, § 53166, subd. (c)(1).)

13) States that the board of supervisors shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county. (Gov. Code, § 25303.)

14) Clarifies that the statement above, shall not be construed to limit the budgetary authority of the board of supervisors over the district attorney or sheriff. (Gov. Code, § 25303.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “California enacted two laws, SB 34 (Hill, 2015) and SB 741 (Hill, 2015), which require law enforcement agencies to develop privacy and use policies for automatic license plate readers (ALPR) systems and cell-phone intercept devices. While these laws appropriately balance protecting Californian’s civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, a much wider array of surveillance technology is available to and used by law enforcement agencies.

The Washington Post reported in 2016 that the “number of local police departments that employ some type of technological surveillance increased from 20 percent in 1997 to more than 90 percent in 2013.”

The increased use of surveillances technology has serious implications for civil liberties and privacy. Surveillance technology allows law enforcement agencies to capture detailed information about where people go, who they associate with, and what they say. Protections should be established to ensure surveillance devices are only used for their intended purposes, to catch criminals and fight crime, and not to collect vast amounts of data on non-criminal residents.

SB 1186 applies standards established for automated license plate reader systems and cell-phone intercept devices to a broader array of surveillance devices used by law enforcement agencies. The bill would subject surveillance technologies to public disclosure, provide local legislative review of police surveillance uses, and require the use of a surveillance technology to be governed by a privacy policy.

1. Use of Surveillance Technology in California: From June to November 2014, the ACLU of California examined thousands of publicly available records for California’s 58 counties and 60 selected cities. The ACLU looked at the types of surveillance technology in communities, including automated license plate readers (ALPRs), body cameras, drones, facial recognition, cell phone intercepts (CCIT or “Stingrays”), and video surveillance. The ACLU found that in California there are at least 90 communities (40 counties, 50 cities) possessing some form of surveillance technology. The ACLU found that video cameras were used in more than half of the cities and counties. ALPRs were used in 57 of the 118 counties and cities in our survey possess such devices. At least 32 California communities had body cameras as of November 2014.
   (201501-aclu_ca_surveillancetech_summary_and_recommendations.pdf)
   
   Local law enforcement agencies have also acquired newer technologies like drones and “Stingray” cell phone tracking devices that can be used for surveillance. According to the ACLU, at least three communities (San Jose and Los Angeles and Alameda Counties) have acquired drones for law enforcement purposes. The ACLU reports that Stingrays exist in at least 10 different communities, including Los Angeles, Oakland, San Jose, San Francisco, San Diego and Sacramento. (Id.)
   
   The survey by the ACLU found a publicly available use policy for fewer than 1 in 5 surveillance technology programs. (Id.)
   
2. Existing Law Requires Law Enforcement To Have Transparent Policies for the Use of the Surveillance Technologies of Automatic License Plate Recognition Systems (ALPR) and Cell Phone Intercepts (CCIT): SB 34 (Hill) Chapter 532, Statutes of 2015, imposed a variety of security, privacy and public hearing requirements on the use of automated license plate recognition systems, as well as a private right of action and provisions for remedies. SB 34 specifically required that a public agency that operates or intends to operate an ALPR system to provide an opportunity for public comment at a public meeting of the agency's governing body before implementing the program.
   
   SB 741 (Hill) Chapter 741, Statutes of 2015, prohibits a local agency from acquiring cellular communications interception technology unless approved by its legislative body. SB 741 also requires local agencies to develop and release a usage and privacy policy for CCIT.
   
3. Santa Clara County Ordinance on Surveillance Technology: On June 7, 2016, the Santa Clara County Board of Supervisors approved (5-0) a regulatory framework governing the acquisition and use of surveillance technology by County officials, including the Sheriff and District Attorney.
   
   Under the new law, officials who want to purchase and use surveillance technology in Santa Clara County will have to meet the following requirements:
   
   1. Provide analysis of the privacy and due process implications of the technology they wish to acquire;
      
   2. Submit for approval a set of “use policies” governing the use of the technology, before the technology is acquired or used; and
      
   3. Report back annually on the use of the technology, in order to provide some measure of accountability.
      

The ordinance also provides that the Board of Supervisors, “…shall assess whether the benefits to the impacted County departments and the community of the surveillance technology outweigh the costs – including both the financial costs and reasonable concerns about the impact on and safeguards for privacy, civil liberties and civil rights.”

The ordinance addresses specific existing technologies (like surveillance cameras, automated license plate readers, and cell-site simulators), but also attempts cover surveillance technologies which have not yet been developed, by providing a broad definition of “surveillance technology.”

The ordinance provides law enforcement with exceptions in the case of “exigent circumstances,” that is in cases of “…an emergency involving danger of death or serious physical injury…” (https://www.sccgov.org/sites/d5/newsmedia/press-releases/Pages/SurveillanceOrdinance.aspx)

This bill takes an approach similar to the Santa Clara County Ordinance on a statewide level.

1. Broad Definition of Surveillance Technology in This Bill: This bill defines “Surveillance technology” as any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. The definition goes on to specify that “surveillance technology” includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, international mobile subscriber identity trackers, global positioning system technology, radio-frequency identification technology, biometrics-identification technology, and facial-recognition technology.
   
   “. . . any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group” is language which includes a number of technologies which are in common use by law enforcement. Such technologies include video and audio recording of suspect interviews, video cameras in holding cells within a local police department, or video surveillance in county jails. Such technologies might not merit separate approval by the governing entity of the law enforcement agency and an opportunity for public comment.
   
   This bill does provide some limitations on its broad definition by listing some existing technologies which are excluded from the provisions of this bill. This bill specifies that “Surveillance technology” does not include standard public agency computers and software, fingerprint scanners, ignition interlock devices, cellular telephones, two-way radios, or other similar electronic devices.
   
   The author intends that this bill expand transparency requirements to an extensive range of surveillance technologies currently used by law enforcement agencies, and surveillance technologies that might be used in the future. In order meet that policy objective, a broad definition of “surveillance technology” is necessary. Adopting a broad definition of “surveillance technology” can avoid a piecemeal approach to dealing with each new technology individually. However, by creating such a broad definition of “surveillance technology,” this bill will include technologies used in routine law enforcement applications.
   
2. This Bill Requires County Sheriffs and District Attorneys to get Approval by The Board of Supervisors in Their County to Use Surveillance Technology: California Government Code § 25303 states that the board of supervisors shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county. Section 25303 goes on to say that nothing in the section, including the language above, shall be construed to limit the budgetary authority of the board of supervisors over the district attorney or sheriff.
   
   It is unclear if requiring a sheriff or district attorney to get approval from the board of supervisors before using surveillance technology would be found to be an impermissible obstruction of the investigative function of those offices. Arguably, the procedure outlined by this bill merely informs the board of supervisors on how it should allocate the budget of the sheriff and district attorney. However, the language of Government Code § 25303 does raise the potential for conflict with the language of this bill. This concern does not apply to any of the other law enforcement agencies covered in this bill.
   
3. Argument in Support: According to the bill’s sponsor, the Conference of California Bar Associations: “SB 1186 would require any public agency that uses or accesses information from surveillance technology to develop a Surveillance Use Policy to ensure that the collection and use of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties.

“Although surveillance technologies can be helpful tools for law enforcement, their proliferation and expansion poses serious threats to our privacy and other civil liberties. SB 1186 provides a framework that enable law enforcement to use surveillance technologies and the information they generate for legitimate public protection purposes, while protecting the privacy interests of Californians.”

1. Argument in Opposition: According to the California Police Chiefs Association, Inc.: “The surveillance technology law enforcement utilizes helps them monitor ongoing investigations that can lead to the successful arrests of violent criminals such as drug and human traffickers. This measure would require local law enforcement agencies to obtain approval by a local governing during public hearings for the use of all surveillance technology, which is problematic because it would serve to provide an advantage to current and would-be criminals. This would ultimately put countless communities at risk.

“Concerns of violations in privacy and civil liberties have been addressed with previous legislation. The measures established privacy and use policies for automatic license plate readers (ALPR) systems and cell-phone intercept devices; however, requiring ALL surveillance technologies to abide by similar standards is overly broad and place numerous financial burdens on local law enforcement by requiring them to allocate time and resources to develop, or rewrite policy. Law enforcement must be provided the flexibility to use the available technologies at their disposal as rapidly as the situation evolves without having to be concerned about the cost of policy and reporting requirements.”

1. Related Legislation:
   
   1. SB 21 (Hill) of the 2017 – 2018 Legislative Session was substantially similar to this bill but contained specific reporting requirements and additional public hearing requirements. SB 21 was held in the Assembly Appropriations Committee.
      
   2. AB 1185 (O’Donnell) of the 2017-2018 Legislative Session, would expand a rental company’s ability to use, access, and obtain information relating to a renter’s use of a vehicle obtained through electronic surveillance technology when the rental vehicle has not been returned. Currently, a company must wait one week, and this bill would shorten that period to three calendar days. AB 1185 is pending in the Senate Judiciary Committee.
      
   3. AB 3131 (Gloria) of the 2017-2018 Legislative Session, would require local law enforcement agencies to follow specific procedures to obtain approval from local government prior to the acquisition or use of federal surplus military equipment. AB 3131 is pending assignment in the Senate Rules Committee.
      
2. Prior Legislation:
   
   1. SB 466 (Bates) Chapter 163, Statutes of 2017, expanded a rental company’s ability to use, access, and obtain information relating to a renter’s use of a vehicle obtained through electronic surveillance technology when the vehicle is the subject of an AMBER Alert.
   2. AB 401 (Aguiar-Curry) Chapter 548, Statutes of 2017, required a remote dispensing site pharmacy to utilize certain security measures, including capturing and retaining a recording of facility surveillance for 90 days.
      
   3. SB 868 (Jackson), of 2015-2016 Legislative Session, would have regulated the use of unmanned aircraft and provided penalties for the violation of those prohibitions. SB 868 was held in the Assembly Privacy and Consumer Protection Committee.
      
   4. SB 34 (Hill) Chapter 532, Statutes of 2015, imposed a variety of security, privacy and public hearing requirements on the use of automated license plate recognition systems, as well as a private right of action and provisions for remedies.
      
   5. AB 1820 (Quirk), of the 2015 – 2016 Legislative Session, would have regulated the use of unmanned aircraft systems (UAS) by law enforcement agencies. AB 1820 was held in the Senate Judiciary Committee.
      
   6. SB 741 (Hill) Chapter 741, Statutes of 2015, requires local agencies to publicly approve or disclose the acquisition of CCIT. SB 741 also requires local agencies to develop and release a usage and privacy policy for CCIT.
      
   7. AB 1327 (Gorell), of the 2013-2014 Legislative Session, would have generally prohibited public agencies from using unmanned aircraft systems, with certain exceptions applicable to law enforcement agencies. AB 1327 was vetoed by the Governor.
      
   8. SB 262 (Galgiani), of the 2015-2016 Legislative Session, would have allowed 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 262 was held in the Senate Judiciary Committee.
      
   9. SB 15 (Padilla), of the 2013-2014 Legislative Session, would have clarified when a law enforcement agency needs a warrant to use a unmanned aircraft system (UAS) and that an UAS cannot be used in a manner to invade a person's privacy. SB 15 was held in the Assembly Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California

Anti Police-Terror Project

Asian Americans Advancing Justice

Asian law Alliance
California Civil Liberties Advocacy
California Immigrant Policy Center

Californians United for a Responsible Budget

California Public Defenders Association

Center on Policy Initiatives

Coalition for Human Immigrant Rights

Coalition for Justice and Accountability

Color of Change

Conference of California Bar Associations

Council on American-Islamic Relations – California

Defending Rights & Dissent

Ella Baker Center for Human Rights

Fair Chance Project

Freedom of the Press Foundation

Indivisible California

Justice Teams Network

Lucy Parsons Labs

Media Alliance

Oakland Privacy

Our Family Coalition

Peninsula Peace and Justice Center

Presenté

San Jose Peace & Justice Center

techLEAD San Diego

Tenth Amendment Center

The Utility Reform Network

Urban Peace Institute

Opposition

Association for the Los Angeles Deputy Sheriffs
Association of the Orange County Deputy Sheriffs
California Police Chiefs Association, Inc.
California State Sheriffs’ Association
California Statewide law Enforcement Association
Fraternal Order of Police
Long Beach Police Officers Association

Los Angeles Police Protective League
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs’ Association

San Bernardino County Sheriff

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1186

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/3/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

NO VOTE RECORDED: Anderson

SENATE JUDICIARY COMMITTEE: 4-2, 4/17/18

AYES: Jackson, Hertzberg, Monning, Wieckowski

NOES: Moorlach, Anderson

NO VOTE RECORDED: Stern

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: Author

DIGEST:

This bill requires specified law enforcement agencies to have a policy, approved by their governing bodies, in place before the use of surveillance technology, as defined.

ANALYSIS: Existing federal regulations require all drone owners to register their drones with the Federal Aviation Administration (FAA). Commercial drone operators, but not recreational drone operators, must also obtain FAA authorization, which is granted on a case-by-case basis.

Existing state law:

1. Authorizes certain persons who are not peace officers to exercise the powers of arrest under certain circumstances, if they have completed a specific training course prescribed by the Commission on Peace Officer Standards and Training. (Penal Code § 830.7).
2. Establishes a Division of Aeronautics within the California Department of Transportation (Caltrans). (Public Utilities Code §§ 21001 et seq)
3. Prohibits wiretapping or eavesdropping on confidential communications. (Penal Code § 630.)
4. 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.)
5. Makes a person liable for “physical invasion of privacy” for knowingly entering onto the land of another person or otherwise committing a trespass in order to physically invade the privacy of another person with the intent to capture any type of visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. (Civil Code § 1708.8 (a).)
6. Makes a person liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Civil Code § 1708.8 (b).)
7. Provides that a person who commits an invasion of privacy for a commercial purpose shall, in addition to any other damages or remedies provided, be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. Existing law defines “commercial purpose” to mean any act done with the expectation of sale, financial gain, or other consideration. (Civil Code § 1708.8 (d), (k).)

This bill:

1. Requires, beginning July 1, 2019, that each law enforcement agency submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected.
2. Requires law enforcement agencies to cease using the surveillance technology within 30 days if the proposed plan is not adopted.
3. Requires law enforcement agencies to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used.
4. Requires the policy and any amendments to be posted on the agency’s Web site.
5. Prohibits a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy.
6. Provides that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorney’s fees and costs.
7. Requires an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified.
8. Authorizes an agency to temporarily use surveillance technology during exigent circumstances without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances.
9. Establishes procedures for the Department of the California Highway Patrol (CHP) and the Department of Justice (DOJ) to establish their own Surveillance Use Policies. The bill, among other things, requires that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agency’s Web site. The bill also requires that if these agencies intend to acquire surveillance technology, they provide 90 days advance notice on the agency’s Web site.
10. Defines the following terms for the purposes of this section:
    1. “Exigent circumstances” means a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or the information it provides.
    2. “Governing body” means the elected body that oversees the law enforcement agency or an appointed overseeing body if there is no elected body that provides direct oversight of the law enforcement agency.
    3. “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, and the Department of Justice.
    4. “Surveillance technology” means any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.
    5. “Surveillance technology” does not include standard public agency hardware and software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, such as televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.
11. Finds and declares the following:
    1. While law enforcement agencies increasingly rely on surveillance technologies because those technologies may enhance community safety and aid in the investigation of crimes, those technologies are often used without any written rules or civilian oversight, and the ability of surveillance technology to enhance public safety should be balanced with reasonable safeguards for residents’ civil liberties and privacy.
    2. Promoting a safer community through the use of surveillance technology while preserving the protection of civil liberties and privacy are not mutually exclusive goals, and policymakers should be empowered to make informed decisions about what kind of surveillance technologies should be used in their community.
    3. Decisions about whether to use surveillance technology for data collection and how to use and store the information collected should not be made by the agencies that would operate the technology, but by the elected bodies that are directly accountable to the residents in their communities who should also have opportunities to review the decision of whether or not to use surveillance technologies.

Background

The FAA does not permit commercial drone operation except on a case-by-case basis. However, in February 2015, the FAA proposed regulations on commercial drone users. Among the proposals was a 55-pound weight limitation, line-of-sight operation, maximum airspeed of 100 mph, a ban on operation over any people, a maximum operating altitude of 500 feet, and training and licensing for the operator. Those rules have not been finalized but are expected by mid-year.

In December 2015, the FAA required commercial and recreational drone users to register their drones. Nearly 300,000 drone users registered within the first 30 days, according to the FAA. This is modest success given the more than 1 million drones in use.

Several California local governments have enacted their own drone regulations. In October 2015, the City of Los Angeles enacted drone regulations similar to the FAA proposal. In December, the city filed the first criminal charges under the ordinance, citing two individuals for operating a drone which interfered with a Los Angeles Police Department air unit, causing it to change its landing path. In

northern California, the Golden Gate Bridge, Highway and Transportation District banned drones near the Golden Gate Bridge after a drone crashed on the roadway.

As noted in the author’s statement, state law requires law enforcement agencies to develop privacy and use policies if an agency uses either an automatic license plate readers system or a cell-phone intercept device.

Requires a Surveillance Use Policy

This bill requires a law enforcement agency that wants to use surveillance technology (technology) to submit a Surveillance Use Policy (policy) to the governing body. The policy should then be heard at an open hearing of the governing body and be published on the agency’s Web site.

The policy shall contain (at minimum) the following:

1. Authorized purposes for using the surveillance technology.
2. Types of data that can be and is collected by the surveillance technology.
3. A description of the job title or other designation of employees and independent contractors who are authorized to use the surveillance technology or to access data collected by the surveillance technology. The policy shall identify and require training for those authorized employees and independent contractors.
4. Title of the official custodian, or owner, of the surveillance technology responsible for implementing this section.
5. A description of how the surveillance technology will be monitored to ensure the security of the information and compliance with applicable privacy laws.
6. The length of time information gathered by the surveillance technology will be retained, and a process to determine if and when to destroy retained information.
7. Purposes of, process for, and restrictions on the sale, sharing, or transfer of information to other persons and whether, if so, how the collected information can be accessed by members of the public, including criminal defendants.
8. A process to maintain a record of access of the surveillance technology or information collected by the surveillance technology. At a minimum, the record shall include all of the following:
   1. The date and time the technology is used or the information is accessed.
   2. The data elements the employee used to query the information.
   3. The username of the employee who uses the technology or accesses the information, and, as applicable, the organization or entity with whom the person is affiliated.
   4. The purpose for accessing the information or using the technology.
9. The existence of a memorandum of understanding or other agreement with another local agency or any other party, whether or not formalized, for the shared use of the surveillance technology or the sharing of the information collected through its use, including the identity of the parties.

The policy shall include any technologies already in use.

The policy shall include in separate sections specific to each unique type of surveillance technology, a description of each surveillance technology used by the law enforcement agency.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

1. Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars to local law enforcement agencies to develop a policy that do not have one currently. The more unique types of surveillance technology that an agency uses likely would lead to additional costs to craft a policy section for each type. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)
2. The Department of Justice estimates compliance costs of around $1.8 million annually for new personnel to handle the increased workload associated with this measure. (General Fund, special funds*)
3. The California Highway Patrol estimates workload and programming costs of about $500,000 to develop a surveillance use policy and comply with the other provisions of this bill.
4. Unknown, potentially-significant cost pressures to the court to adjudicate lawsuits seeking to enjoin a law enforcement agency from violating the provisions of this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund**)

SUPPORT: (Verified 5/25/18)

California Civil Liberties Advocacy

California Conference of Bar Associations

OPPOSITION: (Verified 5/25/18)

Association of Orange County Deputy Sheriffs

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotics Officers Association

California Peace Officers’ Association

California Police Chiefs Association

California Public Defenders Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Fraternal Order of Police

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Los Angeles County Sheriff’s Department

Los Angeles Police Protective League

Sacramento County Deputy Sheriffs’ Association

San Bernardino County Sheriff

Prepared by:

5/28/18 9:19:13

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1186 (Hill) - Law enforcement agencies: surveillance: policies

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

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Bill Summary:

SB 1186 would require specified law enforcement agencies to have a policy, approved by their governing bodies, in place before the use of surveillance technology, as defined.

Fiscal Impact:

• Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars to local law enforcement agencies to develop a policy that do not have one currently. The more unique types of surveillance technology that an agency uses likely would lead to additional costs to craft a policy section for each type. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)
• The Department of Justice estimates compliance costs of around $1.8 million annually for new personnel to handle the increased workload associated with this measure. (General Fund, special funds*)
• The California Highway Patrol estimates workload and programming costs of about $500,000 to develop a surveillance use policy and comply with the other provisions of this bill.
• Unknown, potentially-significant cost pressures to the court to adjudicate lawsuits seeking to enjoin a law enforcement agency from violating the provisions of this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund**)

*Legal Services Revolving Fund, Federal Trust Fund, and False Claims Act Fund

**Trial Court Trust Fund

Author Amendments:

Strike the requirement that agencies make specified reports on their use of surveillance technology.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1186 (Hill) - Law enforcement agencies: surveillance: policies

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

Bill Summary:

SB 1186 would require specified law enforcement agencies to have a policy, approved by their governing bodies, in place before the use of surveillance technology, as defined.

Fiscal Impact:

• Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars to local law enforcement agencies to develop a policy that do not have one currently. The more unique types of surveillance technology that an agency uses likely would lead to additional costs to craft a policy section for each type. The Los Angeles Sheriff’s Department costs of about $650,000 annually. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)
• The Department of Justice (DOJ) estimates compliance costs of around $1.8 million annually for new personnel to handle the increased workload associated with this measure. (General Fund, special funds*)
• The California Highway Patrol (CHP) estimates workload and programming costs of about $500,000 to develop a surveillance use policy and comply with the other provisions of this bill.
• Unknown, potentially-significant and likely-reimbursable intermittent costs to local jurisdictions ranging in the tens of thousands of dollars to create a report on technology use at least one every two years. (General Fund, local funds)
• Unknown, potentially-significant cost pressures to the court to adjudicate lawsuits seeking to enjoin a law enforcement agency from violating the provisions of this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund**)

*Legal Services Revolving Fund, Federal Trust Fund, and False Claims Act Fund

**Trial Court Trust Fund

Background:

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. It additionally 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 that 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. Similar protections are afforded to the people in the U.S. Constitution.

Existing law requires law enforcement to obtain a search warrant or other court order before accessing certain data on an electronic device or from an online service provider and prohibits wiretapping or eavesdropping on confidential communications, except under specified circumstances. Moreover, it is 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.

A person is liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the subject had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

If a person invades the of privacy of another person for a commercial purpose, in addition to any other damages or remedies available, the person is subject to disgorgement to the other person of any proceeds or other consideration obtained as a result of the violation of this prohibition. “Commercial purpose” is defined to mean any act done with the expectation of sale, financial gain, or other consideration.

Proposed Law:

This bill would:

• Define “law enforcement agency” as any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, CHP, and DOJ.
• Require each law enforcement agency, starting on July 1, 2019, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified.
• Require the law enforcement agency to cease using the surveillance technology within thirty days if the proposed plan is not adopted.
• Require the law enforcement agency to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used.
• Require the policy and any amendments to be posted on the agency’s website.
• Require the agency to make specified reports, at approved intervals, concerning the use of surveillance technology and to make those reports available on the agency’s website.
• Prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy.
• Provide that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorney’s fees and costs.
• Require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified.
• Allow an agency to temporarily use surveillance technology during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within forty-five days of the end of the exigent circumstances, except as specified.
• Establish procedures for CHP and DOJ to establish their own Surveillance Use Policies.
• Require that DOJ and CHP ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties and that the policy be publicly available on the agency’s website.
• Require that if DOJ or CHP intend to acquire surveillance technology, they provide ninety-day advance notice on the agency’s website, as specified.
• Make specified legislative findings and declarations.

Related Legislation:

SB 21 (Hill, 2017) would have required law enforcement agencies to adopt a surveillance use policy, approved by its governing body, and cease the use of each surveillance technology if the plan is not adopted, as specified. SB 21 failed passage out of the Assembly Committee on Appropriations.

Staff Comments:

This bill would require public agencies that employee peace officers to develop and post on their websites a robust surveillance use policy, a policy that many agencies currently do not have. A new policy, in turn, would result in training of peace officers of the new policies relating to the appropriate use of the surveillance technology. Training could lead to significant costs, particularly for certain agencies with large numbers of peace officers on staff, such as DOJ and CHP.

The Department of Justice anticipates that, to meet the increase in workload, it would need 11.0 Associate Governmental Program Analysts—4.0 for the Appeals, Writs & Trials Unit; 1.0 for the eCrime Unit; 1.0 for the Financial Fraud Unit; 1.0 for the Correction Writs & Appeals; and 4.0 for the Bureau of Medi-Cal Fraud & Elder Abuse. Additionally, the Division of Law Enforcement within DOJ anticipates the need of 2.0 Staff Services Analysts (SSA), 1.0 in the central valley and 1.0 in southern California, to work with the teams that use various forms of surveillance technology, and 1.0 AGPA to develop the initial policy and any amendments, collect data from the SSAs, and prepare the surveillance use report.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 1186 (Author:Hill)

Version: February 15, 2018

Hearing Date: April 17, 2018

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Law enforcement agencies: surveillance: policies

DESCRIPTION

This bill would require law enforcement agencies, as defined, that use or gain information from surveillance technologies, as defined, to develop a Surveillance Use Policy detailing the technology and how it will be used by the agency. A subset of those law enforcement agencies would have to submit their policies to their governing body for approval. Surveillance Technology Use Reports would need to be compiled and posted publicly, detailing the implementation of the policies. A new Surveillance Use Policy would have to be developed before a law enforcement agency could request funds for, acquire, use, or gain information from a new surveillance technology. This bill provides a cause of action for violations of these provisions; however, the remedies would be limited to injunctive relief and attorneys’ fees and costs. This bill is substantially similar to SB 21 (Hill, 2017), which passed through this Committee in 2017.

BACKGROUND

As technologic advances abound, law enforcement and other public agencies have incorporated a wide variety of surveillance technologies into their operations. These technologies are seen as useful tools to enhance community safety and aid in the investigation of crimes; however, their use of and ability to collect information from Californians has sparked controversy and court battles in recent years, especially when information is collected on individuals not under investigation for any crimes. These issues are compounded by the fact that many public agencies do not openly post their surveillance policies if they have them at all.

The Washington Post reported that the “number of local police departments that employ some type of technological surveillance increased from 20 percent in 1997 to more than 90 percent in 2013, according to the latest information from the Bureau of Justice Statistics.”^[1] The data collected with the surveillance devices can be stored for undefined periods of time, often in large, regional databases. According to a report released by the Center on Privacy & Technology at Georgetown Law, half of American adults – more than 117 million people – are in a law enforcement face recognition network. The report also revealed that one in four law enforcement agencies can access such data subject to little or no regulatory oversight. In fact, software is now being marketed and sold to public agencies that can be installed on smartphones and be used to identify people through this facial recognition technology. The boom in surveillance technology usage has also hit California, where many public agencies rely on a wide range of technologies, though the exact extent is unknown.

For example, the Oakland Police Department (OPD) acquired and used social media monitoring technology to conduct surveillance at public gatherings. The technology can be used to search social media sites for key words in real-time, geographically locating people as they communicate with each other on the go, reading their posts, viewing their pictures and videos, and tracking who they interact with. OPD admitted that they purchased and began using the technology without any approval from their governing body and without any public announcement. The American Civil Liberties Union of California found, through an extensive search of public records, that this sort of social media surveillance technology was in use by many agencies throughout California.

Other technologies in use and subject to little oversight include biometric mobile technologies that can read and trace tattoos or irises and radar devices that allow law enforcement agencies to effectively peer through the walls of houses. This is in addition to more well-known surveillance technologies, such as cameras and drones. But even that technology is being used in new, more invasive ways. For instance, San Jose has built a wide registry of cameras on both private and public homes and buildings that can be searched.

In response to concerns over the rise of such technologies and the lack of oversight or transparency, two bills were enacted into law in 2015 that address two of these technologies. SB 34 (Hill, Chapter 532, Statutes 2015) placed restrictions on the use of Automated License Plate Recognition (ALPR) technology by both public and private sector users. ALPR users and operators are required to implement and maintain a usage and privacy policy consistent with respect for individuals’ privacy and civil liberties. SB 741 (Hill, Chapter 659, Statutes 2015) was a similar bill that instead targeted cellular communications interception technology, establishing requirements that local agencies must fulfill before acquiring such technology. However, although both bills require posting of usage and privacy policies regarding those technologies, a study conducted in 2016 found that many agencies believed to possess and utilize these technologies had no posted usage policies.

Despite the utility of these bills in providing some transparency and oversight in the use of surveillance technology, they only apply to two forms of surveillance technology. SB 21 (Hill, 2017) was introduced last year in an attempt to address the widespread and rapidly expanding use of surveillance technology and the lack of oversight at the local and state level in a more holistic way, rather than continuing to tackle each surveillance technology individually. The bill proposed to install reasonable safeguards to preserve the protection of civil liberties and privacy. That bill passed out of this Committee, but was held in the Assembly Appropriations Committee.

This bill is substantially similar to SB 21 and looks to accomplish the same ends by requiring certain law enforcement agencies^[2] that use or access information from surveillance technology to submit to their governing bodies a “Surveillance Use Policy” (Policy). Such a Policy would need to be guided by the goal of ensuring that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology are consistent with respect for individuals’ privacy and civil liberties. The governing body would then consider adoption of the Policy at a regularly scheduled hearing after providing the opportunity for public comment. If the Policy is not adopted, the law enforcement agency would be required to cease all use of surveillance technology within 30 days and until a Policy is adopted.

Each Policy would be required to include a number of details regarding the technology, including who can use the technology and for what purposes; how the technology will be monitored to ensure both the security of the information and compliance with applicable privacy laws; the process for logging who accesses the technology or the data collected and why; and the existence of any agreements with other parties for the shared use of technology or information gathered from it.

If a law enforcement agency sought to use or access another type of surveillance technology, it would have to submit an amendment to the governing body, abiding by all the procedures laid out for the initial Policy, and have it approved before it could request funds for, acquire, use, or access information from a new technology.

This bill would provide a limited exemption from these procedures if a law enforcement agency has a good faith belief that an emergency involving danger of death or serious physical injury to any person requires the use of a surveillance technology or the information it provides.

In addition to any other sanctions, penalties, or remedies provided by law, an individual would be authorized to bring a civil action to prevent a violation of these provisions. Unlike SB 21, the only remedy would be injunctive relief. The court would be permitted to award reasonable attorney’s fees and other litigation costs reasonably incurred by a prevailing plaintiff.

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 law, the California Constitution, provides 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. (Cal. Const., art. I, Sec. 13.)

Existing law, the United States 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. (United States Const. 4th Amendment.)

Existing law requires law enforcement to obtain a search warrant or other court order before accessing certain data on an electronic device or from an online service provider. (Pen. Code Sec. 1546 et seq.)

Existing law prohibits wiretapping or eavesdropping on confidential communications. (Pen. Code Sec. 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. (Pen. Code Sec. 632.)

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. (Pen. Code Sec. 629.50 et. seq.)

Existing law makes a person liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Civ. Code Sec. 1708.8 (b).)

Existing law provides that a person who commits an invasion of privacy for a commercial purpose shall, in addition to any other damages or remedies provided, be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. Existing law defines “commercial purpose” to mean any act done with the expectation of sale, financial gain, or other consideration. (Civ. Code Sec. 1708.8 (d), (k).)

This bill would define “surveillance technology” as any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This would include drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software. This bill would specifically exclude standard public agency hardware and software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, such as televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.

This bill would define “law enforcement agency” as any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, and the Department of Justice.

This bill would define “governing body” as the elected body that oversees the law enforcement agency or an appointed overseeing body if there is no elected body that provides direct oversight of the law enforcement agency.

This bill would require a law enforcement agency, with specified exceptions, that uses or accesses information from surveillance technology to submit to its governing body, on or before July 1, 2019, a “Surveillance Use Policy” (Policy) to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. The Policy would have to be in writing and made publicly available on the agency’s Web site prior to the public hearing and after adoption.

This bill would require the governing body to consider the policy for adoption by resolution or ordinance on the regular, nonconsent calendar at a regularly scheduled hearing pursuant to the Ralph M. Brown Act. The governing body would be required to provide an opportunity for public comment before adopting the resolution or ordinance. If a submitted Policy is not adopted by the governing body, the law enforcement agency would be required to cease use of surveillance technologies within 30 days of the hearing and until such time as a Policy is adopted.

This bill would provide exceptions to the above provisions for sheriffs’ departments, district attorneys, the Department of Justice, and the California Highway Patrol.

This bill would require, on or before July 1, 2019, a sheriff’s department or a district attorney that uses or accesses information from a surveillance technology to hold a properly noticed public hearing and provide an opportunity for public comment before adopting a Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties. The Policy would have to be in writing and be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.

This bill would require, on or before July 1, 2019, the Department of Justice or the Department of the California Highway Patrol to adopt a Policy if they use or access information from a surveillance technology. Their policies would have to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties. The policy would have to be in writing and be made publicly available on the agency’s Internet Web site. There would be no requirement to hold a public hearing or to provide an opportunity for public comment.

This bill would require the initial Policy of each law enforcement agency to pertain to any surveillance technologies already in use or relied upon for information and to include, in separate sections specific to each unique type of surveillance technology, a description of each surveillance technology used or relied upon by the law enforcement agency. Each section covering a separate technology would be required to include, at a minimum, the following:

• authorized purposes for using the surveillance technology;
• types of data that can be and are collected by the surveillance technology;
• a description of the job title or other designation of employees and independent contractors who are authorized to use the surveillance technology or to access data collected by the surveillance technology. The policy would need to identify and require training for those authorized employees and independent contractors;
• title of the official custodian, or owner of the surveillance technology responsible for implementing this section;
• a description of how the surveillance technology will be monitored to ensure the security of the information and compliance with applicable privacy laws;
• the length of time information gathered by the surveillance technology will be retained, and a process to determine if and when to destroy retained information;
• purposes of, process for, and restrictions on the sale, sharing or transfer of information to other persons and whether and, if so, how the collected information can be accessed by members of the public, including criminal defendants;
• the existence of a memorandum of understanding or other agreement with another local agency or any other party, whether or not formalized, for the shared use of surveillance technology or the sharing of information collected through its use, including the identity of the parties; and
• a process to maintain a record of access of the surveillance technology or information collected by surveillance technology. At a minimum, the record would be required to include all of the following:
• the date and time the technology is used or the information is accessed;
• the data elements the employee used to query the information;
• the username of the employee who uses the technology or accesses the information, and, as applicable, the organization or entity with whom the person is affiliated; and
• the purpose for accessing the information or using the technology.

This bill would require a law enforcement agency, with specific exceptions, that intends to acquire, use, or access information from a new type of surveillance technology, after July 1, 2019, and after the adoption of the initial Policy, to submit an amendment to the Policy to its governing body for approval to include the new type of technology as a new section of the Policy consistent with the procedures above, including the requirement that an opportunity be provided for public comment. The amendment would have to be submitted before a law enforcement agency could request funds for, acquire, use, or access information from the new technology.

This bill would provide the governing body considering any amendment 30 days to review the amendment. If the submitted amendment is not adopted in that time frame, this bill would prohibit a law enforcement agency from requesting funds for, acquiring, using, or accessing information from the new surveillance technology.

This bill would provide exceptions to the above provisions regarding new types of surveillance after the adoption of an initial Policy for sheriffs’ departments, district attorneys, the Department of Justice, and the California Highway Patrol.

This bill would require that, after July 1, 2019, if a sheriff’s department, district attorney, the Department of Justice, or the Department of the California Highway Patrol intends to acquire a new type of surveillance technology after the adoption of an initial Policy, that agency shall draft an amendment to the Policy to include the new type of technology as a new section. A sheriff’s department or a district attorney would be required to hold a properly noticed public hearing and provide an opportunity for public comment before adopting such an amendment. The amendment must be in writing and be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption. The Department of Justice or the Department of the California Highway Patrol would be required to post the amendment in writing and make it publicly available on the agency’s Internet Web site.

This bill would provide that, if a sheriff’s department or a district attorney is not in possession of surveillance technology on or before July 1, 2019, and intends to acquire surveillance technology after that date, that agency shall hold a properly noticed public hearing and provide an opportunity for public comment before adopting a Surveillance Use Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. The policy would need to be in writing and be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.

This bill would provide that if either the Department of Justice or the Department of the California Highway Patrol is not in possession of surveillance technology on or before July 1, 2019, and intends to acquire surveillance technology after that date, that agency shall prominently post on the agency’s Internet Web site a public notice of its intention to commence the process of acquiring surveillance technology not less than 90 days before taking any such steps. The notice would need to include a description of information describing the surveillance technology and how it works, including product descriptions from manufacturers, information on the proposed purpose for the surveillance technology, and type of data collected. If either of these agencies acquires surveillance technology after July 1, 2019, and did not utilize surveillance technology before that date, the agency would be required to adopt a Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties. The policy would need to be in writing and be made publicly available on the agency’s Internet Web site.

This bill would provide that if, before July 1, 2019, a law enforcement agency has implemented the requirements for an automated license plate recognition system, pursuant to Title 1.81.23 (commencing with Section 1798.90.5) of Part 4 of Division 3 of the Civil Code or for cellular communications interception technology pursuant to Article 11 (commencing with Section 53166) of Chapter 1, the law enforcement agency shall include the required information as part of the Policy required by this bill.

This bill would provide that if a law enforcement agency is not in possession of surveillance technology on or before July 1, 2019, and intends to acquire surveillance technology after that date, the law enforcement agency shall submit a Policy to its governing body for consideration. Nothing in this section would limit the authority of a governing body to exercise its budgetary authority in any way if a law enforcement agency makes a budget request to acquire surveillance technology.

This bill would require a law enforcement agency, with exceptions, that uses surveillance technology and which has an approved Policy to submit to its governing body a written Surveillance Technology Use Report (Report). The Report would be produced at a time interval agreed to by the law enforcement agency and the governing body, but no less often than every two years.

This bill would require that the Report be made publicly available on the agency’s Web site, and, at a minimum, include the following:

• the acquisition costs for each surveillance technology, as well as the annual operating cost, including personnel costs;
• the total number of times each type of technology was used in the preceding year and the total number of times each type of technology helped apprehend suspects or close a criminal case;
• the total number of times the surveillance technology was borrowed from or lent to another agency, the identity of that agency, and the purposes for which the surveillance technology was shared, including any exigent circumstances;
• the total number of the agency employees trained and authorized to use each type of surveillance technology; and
• the total number of times any surveillance technology was used in a manner out of compliance with the agency’s Policy, whether data collected through the use of surveillance technology was inappropriately disclosed, released, or in any other way revealed for a nonapproved reason, and the steps the agency took to correct the error.

This bill would provide that not less than every two years, a sheriff’s department, district attorney, the Department of Justice, and the Department of the California Highway Patrol must each publish and post on their Internet Web sites, a written Surveillance Technology Use Report containing the information required above.

This bill would provide that nothing therein shall be construed to do either of the following:

• limit the authority of a governing body to exercise its authority in any way if a law enforcement agency makes a request to acquire surveillance technology; or,
• prohibit a governing body from holding any public meeting required by this section jointly with another law enforcement agency or governing body.

This bill would provide that a governing body would be able to reevaluate any existing Policy at a properly noticed public meeting on their regular nonconsent calendar.

This bill would provide that a law enforcement agency shall not sell, share, or transfer information gathered by surveillance technology, except to another law enforcement agency, and only as permitted by law and as allowed by an approved Policy. This bill would make clear that the provision of data hosting shall not be considered to be the sale, sharing, or transferring of surveillance technology information.

This bill would provide that in addition to any other sanctions, penalties, or remedies provided by law, any person may seek injunctive relief to prevent a violation of this bill. The court would be authorized to award reasonable attorneys’ fees and other litigation costs reasonably incurred by a prevailing plaintiff.

This bill would require a law enforcement agency to take appropriate disciplinary action, consistent with the agency’s existing disciplinary procedures, against an employee who knowingly or intentionally uses surveillance technology in a manner that is not consistent with this bill’s provisions or with the agency’s approved Policy.

This bill would define “exigent circumstances” as a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or the information it provides.

This bill would allow a law enforcement agency to temporarily acquire or temporarily use a surveillance technology in exigent circumstances without following the above procedures unless that acquisition or use conflicts with or is preempted by other state or federal law.

This bill would provide that if a law enforcement agency acquires or uses a surveillance technology in exigent circumstances, the agency shall do all of the following:

• use the surveillance technology to solely respond to the exigent circumstances;
• cease using the surveillance technology when the exigent circumstances end;
• only keep and maintain data related to the exigent circumstances and dispose of any data that is not related to the exigent circumstances; and,
• except for the Department of Justice and the Department of the California Highway Patrol, report that acquisition or use to the governing body within 45 days following the end of the exigent circumstances. The Department of Justice or the Department of the California Highway Patrol would be required to publicly disclose that acquisition or use within 45 days following the end of the exigent circumstances in writing on the agency’s Internet Web site.

This bill would require that any technology temporarily acquired in exigent circumstances shall be returned within seven days following its acquisition, or when the exigent circumstances end, whichever is sooner, unless the technology is submitted to the governing body for approval pursuant to the provided processes and is approved. If the agency is unable to comply with the seven-day timeline, the agency shall notify the governing body, who may grant an extension.

COMMENT

1. Stated need for the bill

According to the author:

California enacted two laws, SB 34 (Hill, 2015) and SB 741 (Hill, 2015), which require law enforcement agencies to develop privacy and use policies for automatic license plate readers (ALPR) systems and a cell-phone intercept devices. While these laws appropriately balance protecting Californian’s civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, a much wider array of surveillance technology is available to and used by law enforcement agencies.

The Washington Post reported in 2016 that the “number of local police departments that employ some type of technological surveillance increased from 20 percent in 1997 to more than 90 percent in 2013.”

The increased use of surveillances technology has serious implications for civil liberties and privacy. Surveillance technology allows law enforcement agencies to capture detailed information about where people go, who they associate with, and what they say. Protections should be established to ensure surveillance devices are only used for their intended purposes, to catch criminals and fight crime, and not to collect vast amounts of data on non-criminal residents.

SB 1186 applies standards established for automated license plate reader systems and cell-phone intercept devices to a broader array of surveillance devices used by law enforcement agencies. The bill would subject surveillance technologies to public disclosure, provide local legislative review of police surveillance uses, and require the use of a surveillance technology to be governed by a privacy policy.

2. Fundamental Right to Privacy

The right to privacy is a fundamental right protected by Section 1 of article I of the California Constitution. This bill would protect that fundamental right by requiring law enforcement agencies that use surveillance technology to develop policies governing such use and to have those policies vetted by elected officials with input from the communities being surveilled. Such policies would be required to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties.

Writing in opposition, the Association of Orange County Deputy Sheriffs, California Statewide Law Enforcement Association, Fraternal Order of Police, Long Beach Police Officers Association, and Sacramento County Deputy Sheriffs’ Association state that making surveillance technologies publicly available would hinder law enforcement efforts. However, the prevalence of surveillance technology, its surreptitious use, and potentially deep reach has raised serious privacy concerns. The U.S. Supreme Court has examined the significant privacy concerns raised by one such technology in United States v. Jones (2012) 132 S. Ct. 945. 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].)

These concerns regarding GPS monitoring apply just as strongly to many of the surveillance technologies now in use by law enforcement agencies throughout California. California residents may be less willing to exercise their associational and expressive freedoms if they know that law enforcement can track their movements and behaviors without any transparency or oversight. This bill seeks to strengthen California residents’ fundamental right to privacy by requiring law enforcement agencies to develop and abide by Surveillance Use Policies that are vetted by governing bodies with public input.

3. Transparency

This bill would work to address the lack of transparency in the use of surveillance technology. Currently, there are no overarching regulatory mechanisms to ensure that the public or even elected bodies are aware of how these technologies are used. This bill would require law enforcement agencies, with certain agency exceptions discussed below, to reveal what surveillance technologies they are using or accessing. It would also require a clear detailing of who can use each technology and for what reason. If a law enforcement agency wanted to use or access information from a new technology, it would have to go through the same process.

It would also require review of any proposed Policy at a public hearing after an opportunity is given for public comment. As a matter of public policy, the requirement to allow for public comment at a public meeting prior to adoption of any Policy makes government decision-making more transparent and enables communities to have a voice in deciding whether their community should adopt any proposed technology.

One exception would be available to law enforcement agencies. This bill would authorize a law enforcement agency to temporarily acquire or use a surveillance technology in “exigent circumstances,” without following the procedures otherwise mandated for such acquisition and use. The exigent-circumstances provision attempts to strike the proper balance between flexibility for law enforcement in unique situations while setting limitations on this exception.

4. Oversight

By requiring these policies be adopted by a governing body, this bill would establish some level of oversight of the use of surveillance technology in California. After allowing for public comment, a governing body would be required to analyze any proposed Policy to ensure it preserves the constitutional protections afforded its constituents. If the law enforcement agency using any form of surveillance technology does not develop an adequate Policy, the governing body can prevent the law enforcement agency from using that technology. Furthermore, each Policy would have to detail how access to the technologies or the information gathered through them is being logged with details on how the technology is being accessed and why. This would provide a certain layer of accountability, rather than allow anonymous access to the technologies and the data.

This bill would also mandate each law enforcement agency with a Policy to produce a Surveillance Technology Use Report (Report) that details associated costs, uses, successes and failures, and violations. Such a Report provides a tool for a governing body and the public to analyze the use of surveillance technology and weigh its continuing value against any concerns that arise. However, there are a few glaring omissions from the required components of the Report in this bill as compared to SB 21, which passed out of this Committee last year. The Reports that are required to be submitted by law enforcement agencies would no longer need a description of the type of data collected by each surveillance technology, including whether each technology captured images, sound, or other data. In addition, the Reports no longer need to include information about the classification of employees who are accessing the data, nor the type or frequency of the training provided to those employees. It is unclear why these provisions were taken out.

In addition, the previous version of this bill provided that it should not be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology. It also gave the governing bodies the ability to revoke or request amendments to a Policy at any properly noticed public meeting on the regular calendar. These provisions were taken out. The ability of a governing body to “reevaluate” an existing Policy, as this bill would still provide, is rather ineffective if the governing body does not also have the ability to thereafter revoke or request amendments to that Policy if it sees fit. A governing body should also have the ability to adopt additional protocols for the process of developing, adopting, and reviewing a Policy if they see fit. These provisions are critical to meaningful oversight. Therefore, the following Committee amendment is suggested:

Amendment #1

On page 10, strike out lines 19 to 21, inclusive, and insert:

“(h) Nothing in this section shall be construed to prohibit a governing body, the Department of Justice, or the Department of the California Highway Patrol from adopting additional protocols as they relate to surveillance technology. A governing body may reevaluate any existing Surveillance Use Policy at a properly noticed public meeting on the regular, nonconsent calendar and revoke or request amendments to the policy.”

One other change that has weakened this legislation is the right of action to enforce its provisions. SB 21 included a right of action for a person “who has been harmed by a violation of this section” that would entitle that plaintiff to at least $2,500 in liquidated damages for each violation and punitive damages for particularly egregious situations. This provision provided another layer of accountability and oversight over the agencies using these sorts of surveillance technologies.

The right of action in this bill has been pared down. This bill would no longer provide a person injured by a violation of this bill a cause of action for actual or statutory damages, or punitive damages upon proof of willful or reckless disregard of the law. It now allows any person to bring a civil action, but limits the remedy to only injunctive relief. A court could still award reasonable attorneys’ fees and litigation costs that are reasonably incurred. Therefore, if law enforcement agencies violated the provisions of this bill, they would essentially be told by a court to follow the law and would not face any further repercussions pursuant to this bill except for any fees they caused a plaintiff to incur. Although the bill still provides a cause of action for some relief, the likelihood of suit being filed to enforce these provisions is diminished by taking these important remedies away from affected parties.

5. Defining “Surveillance Technology”

“Surveillance Technology” would be defined as any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This would include drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.

This bill would specifically exclude standard public agency hardware and software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, such as televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.

This definition is broad in scope in order to ensure that all technology used for surveillance is covered by a law enforcement agency’s Policy. However, the definition includes a list of exclusions that should reduce any overbreadth that might sweep in standard technology not contemplated by the author.

One possibly gray area is cell phones, which are almost universally equipped with cameras and microphones that can be used to video or record audio. However, these capabilities are relatively limited. More troublingly, as discussed above, such phones can be equipped with applications that allow for facial recognition and other biometric monitoring tools. However, if cell phones, or other similar devices currently excluded, are given such modifications and enhancements, they should no longer be considered “standard public agency hardware and software . . . not used by the law enforcement agency for any surveillance or surveillance-related functions.” In such a case, this enhanced cell phone, or at the very least the technology added to the cell phone, would be considered “Surveillance Technology” in and of itself that would need to be identified in a law enforcement agency’s Policy.

6. Exceptions for specified law enforcement agencies

Unlike SB 21 (Hill, 2017), this bill treats district attorneys and sheriffs’ departments differently than other law enforcement agencies. As discussed above, the ability for a governing body to evaluate, with the help of public comment, proposed plans to procure and utilize surveillance technologies is critical to meaningful oversight.

A coalition of groups including the ACLU of California, Color of Change, Council on American-Islamic Relations – California, Courage Campaign, Defending Rights & Dissent, Electronic Frontier Foundation, Ella Baker Center, Indivisible California, Media Alliance, Oakland Privacy, Restore the 4th SF-Bay Area, and the Tenth Amendment Center, write to urge an amendment addressing this point:

Given the commonplace acquisition and use of surveillance by sheriffs and district attorneys, it is unacceptable that the current bill exempts sheriffs and district attorneys from local legislative oversight. As currently drafted, these county actors can purchase and use surveillance technology even if the public and the local governing body oppose that purchase. We urge you to expand the bill’s legislative approval requirement so that it properly covers sheriffs and district attorneys. Specifically, the bill should be amended to condition the acquisition of new surveillance technology or the continued use of existing surveillance technology on legislative approval by the county board of supervisors.

Section 25303 of the Government Code prohibits boards of supervisors from obstructing the “investigative function of the sheriff” or “the investigative and prosecutorial function of the district attorney”; however, providing oversight of those entities’ surveillance use policies and their procurement of additional equipment does not obstruct such functions. In fact, allowing a board of supervisors to evaluate any proposed Policy is in line with the specific responsibility set out in Section 25303 to “supervise the official conduct” of sheriffs and district attorneys, especially in connection with their “management, or disbursement of public funds” to procure surveillance technologies. However, it would need to be clear that subjecting such Policies to approval by boards of supervisors should not be construed to affect this prohibition on obstruction. Therefore, the following Committee amendments removing the provisions treating sheriffs’ departments and district attorneys differently than other “law enforcement agencies” with this additional caveat is suggested:

Amendment #2

On page 5, strike out lines 23-32, inclusive, in line 33, strike out “(B)” and insert “(4)”

On page 7, in line 32, strike out “(i)”, in lines 32 and 33, strike out “a sheriff’s department, district attorney,” in line 33, strike out “Justice,” and insert “Justice”

On page 7, in line 38, strike out “policy.”, strike out lines 39-40, on page 8, strike out lines 1 to 5, inclusive, in line 6, strike out “California Highway Patrol” and insert “policy. The agency”

On page 8, in line 7, strike out “the agency’s” and insert “its”

On page 8, strike out lines 8 to 18, inclusive, in line 19, strike out “(C)” and insert “(B)”

On page 10, in lines 5 and 6, strike out “a sheriff’s department, district attorney,” in line 6, strike out “Justice,” and insert “Justice”

On page 10, in line 11, strike “either” and insert “any”, after line 18, insert “(3) Limit the application of Section 25303 of the Government Code.”

The Department of Justice and California Highway Patrol would also be treated differently; however, this is based on the unique status of their governance. The only entities overseeing these agencies are the Governor, the Legislature, and the Attorney General. They would still be required to adopt Policies if they wanted to continue or start using surveillance technology. They would also be required to post their Policies publicly before and after adoption. However, they would not be required to hold public hearings and provide opportunity for public comment before adopting a Policy and using surveillance technology, or thereafter amending it. The fact that the Department of Justice and the California Highway Patrol do not have traditional governing bodies does not seem to prevent or obviate the need for more transparency and public input.

7. Data hosting exception

This bill would provide that the provision of data hosting shall not be considered to be the sale, sharing, or transferring of surveillance technology information. Given recent concerns about ALPR data collected by certain entities in California being shared with Federal authorities for the purpose of non-criminal immigration enforcement, the author may wish to place some limitations on how the data is managed by the data hosting business to ensure the privacy rights of all Californians.

Support: None Known

Opposition: Association of Orange County Deputy Sheriffs; California District Attorneys Association; California Police Chiefs Association; California Peace Officers’ Association; California State Sheriffs’ Association; California Statewide Law Enforcement Association; Fraternal Order of Police; Long Beach Police Officers Association; Los Angeles County Sheriff’s Department; Oakland Privacy; Peace Officers Research Association of California; Riverside Sheriffs’ Association; Sacramento County Deputy Sheriffs’ Association

HISTORY

Source: Author

Related Pending Legislation:

AB 2454 (Steinorth, 2018) would provide funds to California residents for the purchase of qualifying home security equipment, including surveillance systems. This bill is currently in the Assembly Governmental Organization Committee.

AB 3229 (Burke, 2018) would require financial institutions to furnish certain information to special agents with the Department of Justice when there has been a relevant crime report filed, including surveillance photographs and video recordings of persons accessing the crime victim’s financial account. This bill is currently in the Assembly Public Safety Committee.

Prior Legislation:

SB 466 (Bates, Ch. 163, Stats. 2017) expands a rental company’s ability to use, access, and obtain information relating to a renter’s use of a vehicle obtained through electronic surveillance technology when the vehicle is the subject of an AMBER Alert.

SB 21 (Hill, 2017) See Background.

AB 401 (Aguiar-Curry, Ch. 548, Stats. 2017) requires, in relevant part, a remote dispensing site pharmacy to retain a recording of facility surveillance for 120 days.

SB 34 (Hill, Ch. 532, Stats. 2015) See Background.

SB 741 (Hill, Ch. 659, Stats. 2015) See Background.

SB 868 (Jackson, 2016) would have established rules on where and how drones may operate. This bill died in the Assembly Privacy and Consumer Protection Committee.

SB 167 (Gaines, 2015) would have made it a crime to operate a drone in a manner that interferes with the efforts of a firefighter. This bill died in the Senate Public Safety Committee.

SB 170 (Gaines, 2015) would have made it a crime for a person to knowingly and intentionally operate a drone over a state prison or county jail. This bill was vetoed by the Governor.

SB 262 (Galgiani, 2015) would have authorized law enforcement agencies to use drones provided such use complies with certain conditions and with approval from their local governing body. This bill died in the Senate Judiciary Committee.

SB 893 (Hill, 2014) would have placed restrictions on the use of automated license plate recognition (ALPR) technology by both public and private sector users. Among other things, this bill would have: required retained ALPR data to consist only of a license plate number, date and time of capture, and geographical location; would have prohibited ALPR operators from trespassing onto private property to collect ALPR data without first obtaining written consent of the landowner; and would have prohibited any public agency from sharing ALPR data with any private entity or individual absent a court order. This bill died on the Senate Inactive File.

AB 179 (Bocanegra, Ch. 375, Stats. 2013) prohibits transportation agencies and other entities that employ an electronic transit fare collection system (ETFC) for the payment of transit fares from selling or providing to third parties any personally identifiable information obtained through a person’s participation in an electronic transit fare collection system (ETFC), with certain exceptions.

ACR 30 (V. Manuel Pérez, Res. Ch. 106, Stats. 2013) declares the Legislature recognizes that pupils and youth deserve the opportunity to develop, make mistakes, and grow without unreasonable school, court, or law enforcement labeling and surveillance.

SB 1330 (Simitian, 2011) would have placed restrictions on the use of automated license plate recognition technology by private entities, including restrictions on the retention, use, and sale of such data. This bill would have also restricted the ability for a person to transfer ALPR data to a law enforcement agency absent a search warrant or other specified circumstances. This bill died on the Senate Floor.

SB 1268 (Simitian, Ch. 489, Stats. 2010) prohibits transportation agencies from selling, or providing to any other person, the personally identifiable information of either subscribers of an electronic toll collection system or anyone who uses a toll bridge, lane, or highway that utilizes an electronic toll collection system.

SB 854 (Committee on Budget and Fiscal Review, 2010) would have, among other things, authorized the Department of the California Highway Patrol to retain license plate data captured by an automated license plate reader for not more than 72 hours unless the data is being used as evidence or for a legitimate law enforcement purpose. The bill would have prohibited the Department from selling ALPR data or making the data available to an agency that is not a law enforcement agency or an individual that is not a law enforcement officer, and would require the Department to monitor internal use of the data to prevent unauthorized use. This bill died on the Senate Floor.

AB 1614 (Committee on Budget and Fiscal Review, 2010) would have, among other things, authorized the Department of the California Highway Patrol to retain license plate data captured by an automated license plate reader for not more than 72 hours unless the data is being used as evidence or for a legitimate law enforcement purpose. The bill would have prohibited the Department from selling ALPR data or making the data available to an agency that is not a law enforcement agency or an individual that is not a law enforcement officer, and would require the Department to monitor internal use of the data to prevent unauthorized use. This bill died on the Senate Floor.

Prior Vote: Senate Public Safety Committee (Ayes 5, Noes 1)

**************

1. See Justin Jouvenal, The new way police are surveilling you: Calculating your threat ‘score’ < https://www.washingtonpost.com/local/public-safety/the-new-way-police-are-surveilling-you-calculating-your-threat-score/2016/01/10/e42bccac-8e15-11e5-baf4-bdf37355da0c_story.html?utm_term=.9a90a1636383> [as of April 18, 2017]. ↑

2. As discussed in detail below, the Department of Justice, the California Highway Patrol, sheriffs’ departments, and district attorneys are subject to various, respective requirements that differ from those that apply to other “law enforcement agencies,” as defined. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1186 Hearing Date: April 3, 2018

Subject: Law Enforcement Agencies: Surveillance: Policies

HISTORY

Source: Author

Prior Legislation: SB 21 (Hill) Failed passage in Assembly Appropriations – 2016

SB 868 (Jackson) Failed Assm. Privacy and Consumer Protection 2016

SB 34 (Hill) Ch. 532, Stats. 2015

SB 167 (Gaines) Not heard 2015

SB 170 (Gaines) Vetoed 2015

SB 262 (Galgiani) Failed Senate Judiciary 2015

SB 263 (Gaines) Not heard 2015

SB 271 (Gaines) Vetoed 2015

SB 741 (Hill) Ch. 741, Stats. 2015

AB 56 (Quirk) Inactive Senate Floor

SB 15 (Padilla) Failed Assembly Public Safety 2014

AB 1327 (Gorell) Vetoed 2014

Support: Conference of California Bar Associations

Opposition: Association of Orange County Deputy Sheriffs; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California District Attorneys Association; California Narcotics Officers Association; California Peace Officers’ Association; California Public Defenders Association; California State Sheriffs’ Association; California Statewide Law Enforcement Association; Fraternal Order of Police; Long Beach Police Officers Association; Los Angeles County Professional Peace Officers Association; Los Angeles County Sheriff’s Department; Los Angeles Police Protective League; Sacramento County Deputy Sheriffs’ Association; San Bernardino County Sheriff

PURPOSE

The purpose of this bill is to require local law enforcement agencies to have a policy, approved by the local governing body, in place before using surveillance technology as defined.

Existing law authorizes certain persons who are not peace officers to exercise the powers of arrest under certain circumstances, if they have completed a specific training course prescribed by the Commission on Peace Officer Standards and Training. (Penal Code § 830.7).

Existing federal regulations require all drone owners to register their drones with the Federal Aviation Administration (FAA). Commercial drone operators, but not recreational drone operators, must also obtain FAA authorization, which is granted on a case-by-case basis.

Existing law establishes a Division of Aeronautics within the California Department of Transportation (Caltrans). (Public Utilities Code §§ 21001 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 makes a person liable for “physical invasion of privacy” for knowingly entering onto the land of another person or otherwise committing a trespass in order to physically invade the privacy of another person with the intent to capture any type of visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. (Civil Code § 1708.8 (a).)

Existing law makes a person liable for “constructive invasion of privacy” for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Civil Code § 1708.8 (b).)

Existing law provides that a person who commits an invasion of privacy for a commercial purpose shall, in addition to any other damages or remedies provided, be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. Existing law defines “commercial purpose” to mean any act done with the expectation of sale, financial gain, or other consideration. (Civil Code § 1708.8 (d), (k).)

This bill requires, beginning July 1, 2019, that each law enforcement agency submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected.

This bill requires law enforcement agencies to cease using the surveillance technology within 30 days if the proposed plan is not adopted.

This bill requires law enforcement agencies to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used.

This bill requires the policy and any amendments to be posted on the agency’s website.

This bill requires agencies to make specified reports, at approved intervals, concerning the use of surveillance technology, and to make those reports available on the agency’s website.

This bill would prohibit a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy.

This bill would provide that any person could bring an action for injunctive relief to prevent a violation of these provisions and, if successful, could recover reasonable attorney’s fees and costs.

This bill would require an agency to discipline an employee who knowingly or intentionally uses surveillance technology in violation of these provisions, as specified.

This bill would authorize an agency to temporarily use surveillance technology during exigent circumstances without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances.

This bill would establish separate procedures for a sheriff’s department or a district attorney to establish their own Surveillance Use Policies, instead of submitting them through their governing body. The procedures would include holding a noticed public hearing on the proposed policy, posting the policy on the department’s website, amending the policy to include new types of surveillance technology, and publishing a biennial report regarding the department’s use of surveillance technology.

This bill would also establish procedures for the Department of the California Highway Patrol (CHP) and the Department of Justice (DOJ) to establish their own Surveillance Use Policies. The bill would, among other things, require that these agencies ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties, and that the policy be publicly available on the agency’s website. The bill would also require that if these agencies intend to acquire surveillance technology, they provide 90 days advance notice on the agency’s website.

This bill defines the following terms for the purposes of this section:

• “Exigent circumstances” means a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or the information it provides.
• “Governing body” means the elected body that oversees the law enforcement agency or an appointed overseeing body if there is no elected body that provides direct oversight of the law enforcement agency.
• “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, and the Department of Justice.
• “Surveillance technology” means any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate recognition systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.
• “Surveillance technology” does not include standard public agency hardware and software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, such as televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.

This bill finds and declares the following:

• While law enforcement agencies increasingly rely on surveillance technologies because those technologies may enhance community safety and aid in the investigation of crimes, those technologies are often used without any written rules or civilian oversight, and the ability of surveillance technology to enhance public safety should be balanced with reasonable safeguards for residents’ civil liberties and privacy.
• Promoting a safer community through the use of surveillance technology while preserving the protection of civil liberties and privacy are not mutually exclusive goals, and policymakers should be empowered to make informed decisions about what kind of surveillance technologies should be used in their community.
• Decisions about whether to use surveillance technology for data collection and how to use and store the information collected should not be made by the agencies that would operate the technology, but by the elected bodies that are directly accountable to the residents in their communities who should also have opportunities to review the decision of whether or not to use surveillance technologies.

COMMENTS

1. Need for This Bill

According to the author:

California enacted two laws, SB 34 (Hill, 2015) and SB 741 (Hill, 2015), which require law enforcement agencies to develop privacy and use policies for automatic license plate readers (ALPR) systems and a cell-phone intercept devices. These surveillance technologies are capable of collecting a wide-range of personal information. SB 34 and SB 741 also generally require a public discussion before ALPR systems or cell-phone intercept devices are used by law enforcement agencies.

SB 34 and SB 741 help to balance protecting civil liberties and privacy with law enforcement’s ability to use technology to fight crime, but these laws only apply to ALPR systems and cell-phone intercept devices. Similar privacy or transparency standards are not in place for other surveillance technologies used by law enforcement.

A wide array of surveillance technology is available to and used by law enforcement agencies. The Washington Post reported in 2016 that the “number of local police departments that employ some type of technological surveillance increased from 20 percent in 1997 to more than 90 percent in 2013.^[1]

The increased use of surveillances technology has serious implications for civil liberties and privacy. Surveillance technology allows law enforcement agencies to capture detailed information about where people go, who they associate with, and what they say. Protections should be established to ensure surveillance devices are only used for their intended purposes, to catch criminals and fight crime, and not to collect vast amounts of data on non-criminal residents.

Surveillance technology law enforcement agencies are utilizing includes but is not limited to the following:

• Facial recognition: Facial recognition uses software to compare a person’s photo to databases like those maintained by the Department of Motor Vehicles which hold driver’s license photos. According to the Georgetown University School of Law, “nearly half of all American adults have been entered into law enforcement facial recognition databases.”^[2] Facial recognition is widely used by California law enforcement agencies. In San Diego alone there are 433 devices used by 991 law enforcement personnel.^[3] All law enforcement agencies in Los Angeles County have access to facial recognition software.
• Social media scrubbers: Products like Geofeedia and Media Sonar allow law enforcement agencies to monitor online activity (e.g. Facebook and Twitter posts). At least 21 law enforcement agencies across the state use social media scrubbers. This technology is often deployed to monitor protest events. For example, Oakland Police admitted to using the technology to monitor Black Lives Matter protests.
• Video surveillance: This type of surveillance typically involves mounting closed caption cameras on light or utility poles. Many of the cameras are capable of capturing video in 360-degree views for 24 hours a day. Cameras are often capable of zooming and recording sound. At least 61 departments have surveillance cameras, though only 3 of the departments have any type of privacy or use policy.
• Portable surveillance cameras: Unlike video surveillance equipment, portable surveillance cameras capture still images rather than continuous footage. These cameras can be placed anywhere and take pictures of any person that crosses their path. The City of Orinda in the Bay Area deployed 13 cameras and over a 90 day period, 5.7 million pictures were taken.^[4] It is not known how many law enforcement agencies use the technology statewide, but at least 13 different agencies in the Bay Area deploy them.
• Portable biometric scanners: Similar to facial recognition software, biometric scanners come in many forms and can analyze physical characteristics like faces, fingerprints, and retinas. According to the Electronic Frontier Foundation, biometric scanners can be used to capture personal data whether or not someone is suspected for a crime.
• Drones: Local law enforcement agencies use drones to perform surveillance. The devices are outfitted with cameras that capture photos and video, which can be transmitted to centralized databases. There are no laws dictating that law enforcement agencies disclose their use of drones or what they are used for.
• Radar systems: Radar systems use radio waves to see inside structures like homes or businesses. Originally deployed in war-zones this handheld and highly portable technology can be used by an officer at a distance of over 50 feet to detect whether someone is inside a structure.
• ALPR systems: Used primarily by law enforcement agencies on police vehicles, ALPR systems use a combination of high-speed cameras, software, and criminal databases to rapidly check the license plates of millions of Californians. Use of ALPR is subject to the requirements of SB 34 (Hill, 2015).
• Cell-phone intercept devices: Commonly known by its brand name “Stingray,” Cell-phone intercept devices allow law enforcement agencies to mimic a cell phone tower. The device, which is portable and usually the size of a briefcase, can be used to find out who a person is calling, when a call is made, and where a call is made from. In some cases these devices can capture the content of a conversation. The use of this technology is subject to the requirements of SB 741 (Hill, 2015).

2. Current Regulation

The FAA does not permit commercial drone operation except on a case-by-case basis. However, in February 2015, the FAA proposed regulations on commercial drone users. Among the proposals was a 55-pound weight limitation, line-of-sight operation, maximum airspeed of 100 mph, a ban on operation over any people, a maximum operating altitude of 500 feet, and training and licensing for the operator. Those rules have not been finalized but are expected by mid-year.

In December 2015, the FAA required commercial and recreational drone users to register their drones. Nearly 300,000 drone users registered within the first 30 days, according to the FAA. This is modest success given the more than 1 million drones in use.

Several California local governments have enacted their own drone regulations. In October 2015, the City of Los Angeles enacted drone regulations similar to the FAA proposal. In December, the city filed the first criminal charges under the ordinance, citing two individuals for operating a drone which interfered with a Los Angeles Police Department air unit, causing it to change its landing path. In northern California, the Golden Gate Bridge, Highway and Transportation District banned drones near the Golden Gate Bridge after a drone crashed on the roadway.

As noted in the author’s statement, state law requires law enforcement agencies to develop privacy and use policies if an agency uses either an automatic license plate readers system or a cell-phone intercept device.

3. Requires a Surveillance Use Policy

This bill requires a law enforcement agency that wants to use surveillance technology (technology) to submit a Surveillance Use Policy (policy) to the governing body. The policy should then be heard at an open hearing of the governing body and be published on the agency’s website.

The policy shall contain (at minimum) the following:

• Authorized purposes for using the surveillance technology.
• Types of data that can be and is collected by the surveillance technology.
• A description of the job title or other designation of employees and independent contractors who are authorized to use the surveillance technology or to access data collected by the surveillance technology. The policy shall identify and require training for those authorized employees and independent contractors.
• Title of the official custodian, or owner, of the surveillance technology responsible for implementing this section.
• A description of how the surveillance technology will be monitored to ensure the security of the information and compliance with applicable privacy laws.
• The length of time information gathered by the surveillance technology will be retained, and a process to determine if and when to destroy retained information.
• Purposes of, process for, and restrictions on the sale, sharing, or transfer of information to other persons and whether, if so, how the collected information can be accessed by members of the public, including criminal defendants.
• A process to maintain a record of access of the surveillance technology or information collected by the surveillance technology. At a minimum, the record shall include all of the following:
  • The date and time the technology is used or the information is accessed.
  • The data elements the employee used to query the information.
  • The username of the employee who uses the technology or accesses the information, and, as applicable, the organization or entity with whom the person is affiliated.
  • The purpose for accessing the information or using the technology.
• The existence of a memorandum of understanding or other agreement with another local agency or any other party, whether or not formalized, for the shared use of the surveillance technology or the sharing of the information collected through its use, including the identity of the parties.

The policy shall include any technologies already in use.

The policy shall include in separate sections specific to each unique type of surveillance technology, a description of each surveillance technology used by the law enforcement agency.

4. Reports

This bill requires a report that is to be available on the agency’s website on the use of any technologies. The governing body and law enforcement agency can agree on the time interval of the report. The bill states that the report shall at minimum contain:

• The acquisition costs for each surveillance technology, as well as the annual operating cost, including personnel costs.
• The total number of times each type of technology was used in the preceding year and the total number of times each type of technology helped apprehend suspects or close a criminal case.
• The total number of times the surveillance technology was borrowed from or lent to another agency, the identity of that agency, and the purposes for which the surveillance technology was shared, including any exigent circumstances.
• The total number of the agency employees trained and authorized to use each type of surveillance technology.
• The total number of times any surveillance technology was used in a manner out of compliance with the agency’s Surveillance Use Policy, whether data collected through the use of surveillance technology was inappropriately disclosed, released, or in any other way revealed for a nonapproved reason, and the steps the agency took to correct the error.
• The total costs of the technology; a description of how often it was used; a description of the type of data collected by each technology; the number of times the technology was borrowed or lent to another agency; the number of employees trained and authorized to use each type of technology; and, disclosure on whether the technology was ever used out of compliance with the policy.

5. Exigent circumstances

This bill does allow for the use of a technology which has not had a policy approved for or was not included in the policy under exigent circumstances. 45 days after the use, the agency must report its use to the governing body as well as submit an amendment to the policy. It also requires the technology use to be included in the report.

This seems to presuppose a policy in place for at least some technology. What about a jurisdiction in which the governing board has explicitly prohibited the use of the technology or explicitly limited what technologies can be used?

6. Argument in Opposition

According to the State Sheriffs’ Association:

This bill will dangerously provide a roadmap to criminals as to how and when law enforcement agencies deploy surveillance technology and techniques. SB 1186 requires the surveillance policy, among other things, to detail the types of surveillance used, what data can be and are collected by the technology, and how the surveillance technology is monitored for security. The risk involved in publicizing this sensitive information dwarfs any perceived benefit emanating from the desire to inform the public about how law enforcement operates as it relates to lawful surveillance techniques.

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1. Jouvenal, Justin. “The new way police are surveilling you: Calculating your threat score.” The Washington Post, WP Company, 10 Jan. 2016, www.washingtonpost.com/local/public-safety/the-new-way-police-are-surveilling-you-calculating-your-threat-score/2016/01/10/e42bccac-8e15-11e5-baf4-bdf37355da0c_story.html. ↑

2. Sydell, Laura. “It Aint Me, Babe: Researchers Find Flaws In Police Facial Recognition Technology.” NPR, NPR, 25 Oct. 2016, www.npr.org/sections/alltechconsidered/2016/10/25/499176469/it-aint-me-babe-researchers-find-flaws-in-police-facial-recognition. ↑

3. Walsh, Tom Jones Lynn. “Use of Facial Recognition Software Increases.” NBC 7 San Diego, 6 May 2016, www.nbcsandiego.com/investigations/Use-of-Facial-Recognition-Software-By-San-Diego-Law-Enforcement-Increasing--378006081.html. ↑

4. Wagner, David Paredes and Liz. “Orinda Surveillance Cameras Violate Privacy, Critics Say.” NBC Bay Area, NBC Bay Area, 8 Aug. 2016, www.nbcbayarea.com/investigations/Orinda-Surveillance-Cameras-Violates-Privacy-Critics-Say-389333452.html. ↑