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, 2018, 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. circumstances, except as specified.

The bill would establish separate procedures for a sheriffs department, department or a district attorney, the Department of the California Highway Patrol, and the Department of Justice 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 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, 2018, 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.

The bill would establish separate procedures for a sheriffs department, a district attorney, the Department of the California Highway Patrol Patrol, and the Department of Justice 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 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, 2018, 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 specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. 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.

The bill would establish separate procedures for the Department of the California Highway Patrol and the Department of Justice 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 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, 2018, require each public 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 public law enforcement agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require that the public 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 public law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another public law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. 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.

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, 2018, require each public 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 public agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require that the public agency 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 public agency from selling, sharing, or transferring information gathered by surveillance technology, except to another public agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. The bill would authorize an agency to temporarily use surveillance technology in exigent circumstances during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that that, among other things, the agency submits a specified report to its governing body within 90 45 days of the end of the exigent circumstances or a later period as extended. circumstances.

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, 2018, except in exigent circumstances, as defined, require each public agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed plan Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified. The bill would require the public agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require that the public agency 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 public agency from selling, sharing, or transferring information gathered by surveillance technology, except to another public agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. The bill would authorize an agency to temporarily use surveillance technology in exigent circumstances without meeting the requirements of these provisions, provided that the agency submits a specified report to its governing body within 90 days of the end of the exigent circumstances or a later period as extended.

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.

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, 2018, except in exigent circumstances, as defined, require each law enforcement public agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed plan for the use of each type of surveillance technology and the information collected, as specified. The bill would require that the law enforcement public agency 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 provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. The bill would authorize an agency to temporarily use surveillance technology in exigent circumstances without meeting the requirements of these provisions, provided that the agency submits a specified report to its governing body within 90 days of the end of the exigent circumstances or a later period as extended.

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

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

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs 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, 2018, except in exigent circumstances, as defined, require each law enforcement agency, as defined, to submit to its governing body at a noticed regularly scheduled hearing, open to the public, a proposed plan for the use of all each type of surveillance technology and the information collected, as specified. The bill would require that the law enforcement agency 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 provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorneys fees, and injunctive relief. The bill would authorize an agency to temporarily use surveillance technology in exigent circumstances without meeting the requirements of these provisions, provided that the agency submits a specified report to its governing body within 90 days of the end of the exigent circumstances or a later period as extended.

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

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

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs 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, 2018, require each law enforcement agency, as defined, to submit to its governing body at a noticed hearing, open to the public, a proposed plan for the use of all surveillance technology and the information collected, as specified. The bill would require that the law enforcement agency 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 make legislative findings in support of these provisions.

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

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs 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, 2018, require each law enforcement agency, as defined, to submit to its governing body at a noticed hearing, open to the public, a proposed plan for the use of all surveillance technology and the information collected, as specified. The bill would require that the law enforcement agency 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 make legislative findings in support of these provisions.

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

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: August 23, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 21

Author:(Hill) – As Amended Ver:August 21, 2017

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

SUMMARY:

This bill requires law enforcement agencies to develop a Surveillance Use Policy for all surveillance technologies, and requires those policies to be available to the public for comment and posting. Specifically, this bill:

1. Requires, by July 1, 2018, a law enforcement agency that uses or accesses information from surveillance technology, to submit to its governing body, for adoption at a public hearing, a Surveillance Use Policy, which must be in writing and made publicly available. If the policy is not adopted, the law enforcement agency is required to cease the use of the surveillance technology within 30 days. Also requires law enforcement agencies to submit Surveillance Technology Use Reports, with specified information, to their governing bodies at least every two years.
2. Requires, by July 1, 2018, a sheriff’s department or district attorney to hold a public hearing and provide an opportunity for comment before adopting a Surveillance Use Policy, which must be in writing and made publicly available. Also requires the posting of a Surveillance Technology Use Report, with specified information, on its Internet Web site at least every two years.
3. Requires, by July 1, 2018, the Department of Justice (DOJ) or the California Highway Patrol (CHP), if it uses or access information from a surveillance technology, to adopt a Surveillance Use Policy. Also requires the posting of a Surveillance Technology Use Report, with specified information, on its Internet Web site at least every two years.
4. Provides that any person could bring an action for injunctive relief to prevent a violation of the provisions of this bill and, if successful, could recover reasonable attorney’s fees and costs.

FISCAL EFFECT:

1. Unknown but significant DOJ costs (GF). The Division of Law Enforcement (DLE) has identified the need for three positions, first year costs of $265,000 and annual ongoing costs of $427,000. The Criminal Law Division will see an increase in workload to assist DLE with online investigations, data collection and reporting regarding Surveillance Use Policies throughout the state; this significant cost is unkown.
2. Moderate CHP costs of approximately $500,000 (Motor Vehicle Account) for personnel and programming to develop, build and test a database. The annual ongoing costs will not be as significant.
3. Unknown but significant costs, in the millions of dollars, for local law enforcement agencies to comply with the provisions of this bill. For example, the Los Angeles County Sheriff’s office has identified the need for ten positions and $600,000, to comply with the provisions of this bill. Some costs will be reimbursable, such as the cost to develop a Surveillance Use Policy, but other costs will not be reimbursable since they could be considered an extension of the Open Meetings and/or Public Records Act. The Commission on State Mandates will have to determine which activities constitute a reimbursable state mandate.

COMMENTS:

1. Background. Current law requires data collected through the use or operation of an automated license plate recognition (ALPR) system to be considered as personal information subject to existing law pertaining to agencies, persons, or businesses that conduct business in California, and that own or license computerized data including personal information. An ALPR operator that accesses ALPR information is required to maintain a record of that access and limits the use of that information for authorized purposes only, the operator is also required to maintain security procedures and practices to protect ALPR information. A public agency that operates or intends to operate an ALPR system is required to provide an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before implementing the program.

Current law requires a local government or law enforcement agency that operates cellular communications interception technology, as defined, to maintain reasonable security procedures and practices, and implement a usage and privacy policy, as specified. Current law 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. A county sheriff may acquire such technology after a public notice of the acquisition and adoption of a usage and privacy policy.

In addition to ALPR, surveillance technology includes facial recognition systems, portable biometric scanners, social media scrubbers, portable surveillance cameras, mounted closed caption cameras, drones, and radar systems.

1. Purpose. This bill is intended to address transparency concerns around the use of various kinds of surveillance technologies by law enforcement agencies by requiring public notice and usage policies for law enforcement agencies that wish to use any form of surveillance technology, which in some cases would also require public approval before deployment.

According to the author, "SB 21 expands the transparency requirements established for automatic license plate readers and cell-phone tracking devices established in 2015 to all surveillance technologies used by law enforcement agencies. This means surveillance technology will subject to public disclosure and local legislative review. Surveillance technologies must be governed by a Surveillance Use Policy and law enforcement agencies must submit biannual surveillance reports.”

1. Support and Opposition. Supporters argue that requiring the governing body to approve the use of surveillance technology will ensure community control over these powerful spying tools. In opposition, the Peace Officers Research Association of California, argues that oftentimes, public safety uses of surveillance technology that must remain confidential in order to enhance the efficacy.

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

Date of Hearing: July 11, 2017

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

SBPCA Bill Id:SB 21

Author:(Hill) – As Amended Ver:July 3, 2017

SENATE VOTE: 21-15

SUBJECT: Law enforcement agencies: surveillance: policies

SUMMARY: Requires law enforcement agencies to develop a Surveillance Use Policy for all surveillance technologies, requires those policies to be available to the public for public comment and posting, requires law enforcement agencies other than the Department of Justice (DOJ) and the California Highway Patrol (CHP) to secure the prior approval of their policies from their governing bodies before deployment, and requires law enforcement agencies to submit Surveillance Technology Use Reports to their governing bodies at least every two years. Specifically, this bill:

1. Requires, on or before July 1, 2018, a law enforcement agency that uses or accesses information from surveillance technology to submit to its governing body a Surveillance Use Policy, which must be in writing and made publicly available.
2. Requires the governing body to consider the policy for adoption at a regularly scheduled hearing and provide an opportunity for public comment.
3. Requires a law enforcement agency to cease use of surveillance technology within 30 days if a policy is not adopted.
4. Requires, on or before July 1, 2018, the DOJ and the CHP to hold a public hearing and provide an opportunity for public comment before adopting a Surveillance Use Policy, which must be in writing and made publicly available.
5. Requires a Surveillance Use Policy to cover any surveillance technologies already in use or relied upon for information by the law enforcement agency, with separate descriptions of each surveillance technology used or relied upon, and to address the following topics:
   1. Authorized purposes for using the surveillance technology.
   2. Types of data that can be and are collected by the surveillance technology.
   3. A description of the job title or other designation of each employee and independent contractor who is authorized to use the surveillance technology or to access data collected by the surveillance technology. The policy must identify and require training for those authorized employees and independent contractors.
   4. The title of the official custodian, or owner, of each surveillance technology responsible for legal compliance.
   5. A description of how each 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 each 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, including whether, and 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 to the surveillance technology or information collected by the surveillance technology, as specified.
   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.
6. Requires, after July 1, 2018, a law enforcement agency that intends to acquire a new type of surveillance technology after adopting a Surveillance Use Policy to submit an amendment to the policy to its governing body for approval, as specified. The governing body has 30 days to consider the amendment, and if a submitted amendment is not adopted, the law enforcement agency may not request funds for, acquire, use, or access information from the new surveillance technology.
7. Requires, after July 1, 2018, the DOJ and CHP, if either intends to acquire a new type of surveillance technology after adopting a Surveillance Use Policy, to draft an amendment to the policy, make the amendment available to the public, hold a public hearing and provide the opportunity for public comment before adopting the amendment.
8. If a department is not in possession of surveillance technology on or before July 1, 2018, and intend to acquire surveillance technology thereafter, the department must hold a properly noticed public hearing and provide an opportunity for public comment before adopting a Surveillance Use Policy, which must be made publicly available.
9. Requires a law enforcement agency that has implemented a use policy for automated license plate reader technology or cellular communications interception technology under existing law to include that information about those technologies in the Surveillance Use Policy.
10. If a law enforcement agency is not in possession of surveillance technology on or before July 1, 2018, and intends to acquire surveillance technology thereafter, the agency must submit a Surveillance Use Policy to its governing body for adoption, as specified.
11. Requires a law enforcement agency to submit a Surveillance Technology Use Report to its governing body not less than every two years. The report must be made publicly available and include:
    1. The total costs for each surveillance technology, including personnel costs.
    2. A description of how many times each type of technology was used in the preceding year and how many times each type of technology helped apprehend suspects or close a criminal case.
    3. A description of the type of data collected by each surveillance technology, including whether each technology captured images, sound, or other data.
    4. The number of times and the purposes surveillance technology was borrowed from or lent to another agency, including technologies used under exigent circumstances.
    5. The number and classification of the agency employees trained and authorized to use each type of surveillance technology, along with a description of the training provided to agency employees on each type of surveillance technology and how often the training was provided.
    6. Disclosure of whether 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.
12. Requires the DOJ and the CHP to publish a Surveillance Technology Use Report online not less than every two years containing the same information required above in 11).
13. Clarifies that these provisions may not be construed to prohibit a governing body, the DOJ, or the CHP, from adopting additional protocols as they relate to surveillance technology, or reevaluating any existing Surveillance Use Policy, or revoking or requesting amendments to the policy.
14. Prohibits a law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another law enforcement agency, and only as permitted by law and as allowed by an approved policy.
15. Authorizes any person to seek injunctive relief to prevent a violation of these provisions in addition to any other sanctions, penalties or remedies, and authorizes a court to award reasonable attorney's fees and litigation costs to a prevailing plaintiff.
16. Requires 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 state law or the agency’s approved Surveillance Use Policy.
17. Authorizes a law enforcement agency to temporarily acquire or use a surveillance technology in a manner not expressly allowed by a Surveillance Use Policy, as specified, in exigent circumstances unless that acquisition or use in exigent circumstances conflicts with, or is preempted by, other state or federal law.
18. Defines a “governing body” to mean "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."
19. Defines a “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 Department of the California Highway Patrol, and the Department of Justice."
20. Defines “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 readers, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, radio frequency identification (RFID) technology, biometric identification technology, and facial recognition technology." The term does not include "standard public agency computers and software, fingerprint scanners, ignition interlock devices, cellular telephones, two-way radios, or other similar electronic devices."
21. Defines "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."
22. Declares that no reimbursement is required pursuant to the California Constitution for certain costs that may be incurred by a local agency or school district because this bill creates a new crime or infraction, eliminates a crime or infraction, changes the penalty for a crime or infraction, or changes the definition of a crime.
23. Makes findings and declarations relative to the use of surveillance technology by law enforcement.

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. Permits the CHP to retain license plate data captured by a license plate reader for no more than 60 days, except in circumstances when the data is being used as evidence or for all felonies being investigated, including, but not limited to, auto theft, homicides, kidnapping, burglaries, elder and juvenile abductions, Amber Alerts, and Blue Alerts. (Vehicle Code Section 2413(b)
3. Requires that data collected through the use or operation of an automated license plate recognition (ALPR) system be considered as personal information subject to existing law pertaining to agencies, persons, or businesses that conduct business in California, and that own or license computerized data including personal information. (Civil Code (CC) Section 1798.29; 1798.82)
4. Requires an ALPR operator to maintain reasonable security procedures and practices to protect ALPR information from unauthorized access, destruction, use, modification, or disclosure, and implement a usage and privacy policy that shall be made available to the public. (CC 1798.90.51)
5. Requires an ALPR operator that accesses ALPR information to maintain a record of that access and require that information to be used only for authorized purposes. (CC 1798.90.52)
6. Requires an ALPR end-user to maintain reasonable security procedures and practices and implement a usage and privacy policy, as specified. (CC 1798.90.53)
7. Authorizes an individual harmed by a knowing violation of restrictions on ALPR information to bring a civil action for actual damages not less than $2,500, punitive damages, attorney's fees, and other relief as determined by the court. (CC 1798.90.54)
8. Requires a public agency that operates or intends to operate an ALPR system to provide an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before implementing the program. (CC 1798.90.55(a))
9. Prohibits a public agency from selling, sharing, or transferring ALPR information, except to another public agency, and only as otherwise permitted by law. (CC 1798.90.55(b))
10. Requires a local government or law enforcement agency that operates cellular communications interception technology, as defined, to maintain reasonable security procedures and practices, and implement a usage and privacy policy, as specified. (Government Code Section (GC) 53166(a)-(b))
11. 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. (GC 53166(c)

FISCAL EFFECT: According to the Senate Appropriations Committee:

"Surveillance Use Policy (SUP): Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars (local funds/General Fund) to local law enforcement agencies to develop a SUP 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.

One-time costs of $26,500 and ongoing costs of over $400,000 to the Department of Justice to hire new staff in the central valley, northern California, and southern California regions to collect, maintain, and compile data.

Surveillance Technology Use Report: Unknown, potentially-significant and likely-reimbursable intermittent costs ranging in the tens of thousands of dollars (local funds/General Fund) to create a report on technology use at least once every two years."

COMMENTS:

1. Purpose of the bill: This bill is intended to address transparency concerns around the use of various kinds of surveillance technologies by law enforcement agencies by requiring public notice and usage policies for law enforcement agencies that wish to use any form of surveillance technology, which in some cases would also require public approval before deployment. This bill is author-sponsored.
2. Author's statement: According to the author, "SB 21 expands the transparency requirements established for automatic license plate readers and cell-phone tracking devices established in 2015 to all surveillance technologies used by law enforcement agencies. This means surveillance technology will subject to public disclosure and local legislative review. Surveillance technologies must be governed by a Surveillance Use Policy and law enforcement agencies must submit biannual surveillance reports. The bill provides an exigent circumstances provision to law enforcement, which allows them to use unapproved surveillance devices in emergency situations."
   
   "Over 100 law enforcement agencies in the state are thought to use some type of surveillance technology and many deploy multiple kinds without any public oversight or rules of the road. These are powerful devices that can collect a wide array of information allowing even the smallest of law enforcement agencies to cheaply and easily know where you go, who you speak with, and what you do."

"While technology can be used to improve public safety, its use should be balanced with reasonable safeguards for civil liberties and elected officials have the responsibility of safeguarding the rights to civilian oversight, privacy and other civil liberties, as we strive for a safer environment. SB 21 proposes reasonable safeguards to ensure that law enforcement is held accountable for how they use surveillance technologies – that they are used only to fight crime, as they are intended to do."

1. Regulating law enforcement surveillance technology: In 2015, the Legislature passed two laws, similar to this bill, to regulate law enforcement use of specific surveillance technologies: SB 34 (Hill) which dealt with automated license plate recognition (ALPR) systems, and SB 741 (Hill) which dealt with cellphone site emulators.
   
   SB 34 requires law enforcement to maintain a publicly-available usage and privacy policy for ALPRs with an opportunity for public comment before adoption, as well as a reasonable security procedures requirement, and financial remedies for violations. SB 741 requires local law enforcement agencies that use cellular communications interception technology to implement a usage and privacy policy upon adoption by its governing body after a public hearing and comment, and maintain reasonable security procedures and practices.
   
   According to the author, "While these laws appropriately balance protecting Californians' civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, they are only applicable to two specific technologies. The laws do not apply to the other surveillance technologies used by the police. Increasingly, law enforcement agencies are using a wider array of surveillance technologies as they become available. The technologies include: facial recognition, social media scrubbers, radar, and more. 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.” The data collected with the surveillance devices can be stored for undefined periods of time, often in large, regional databases."

"While surveillance technologies can help improve public safety, the proliferation of the technologies has also had profound impacts on Californians' civil liberties and privacy. As police agencies continue to use a varied array of surveillance devices, they gain a greater ability to capture detailed information about where people go, who they associate with, what they say, and more. There should be laws in place to ensure that surveillance devices are only used for their intended purposes – to catch criminals and fight crime – and not to collect vast amounts of data on a wide array on non-criminal residents."

This bill is inspired in part by a Santa Clara County ordinance (Ordinance No. NS-300.897) passed in 2016 that requires, in part, the county sheriff's and district attorney's offices to obtain County Board of Supervisor approval for the acquisition, use or sharing of surveillance technologies – with the notable exception of technology limited to use in law enforcement investigations and prosecutions.

1. Law enforcement surveillance technologies: The key difference between this bill and the 2015 bills passed by the Legislature is that it applies broadly to surveillance technologies in general. This bill defines “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."
   
   The definition also provides an incomplete list of technologies that includes, but is not limited to: drones with cameras or monitoring capabilities, ALPR systems, closed-circuit cameras/televisions, International Mobile Subscriber Identity trackers, global positioning system technology, radio frequency identification technology, biometric identification technology, and facial recognition technology. The list was purposely left open-ended to capture other types of technology that might be deployed, now or in the future. However, in order to avoid capturing technology that is already ubiquitous, the term does not include "standard public agency computers and software, fingerprint scanners, ignition interlock devices, cellular telephones, two-way radios, or other similar electronic devices."
   
   By way of example, the author's office offers the following descriptions of surveillance technologies that would be affected by this bill, in addition to ALPRs and cellphone site emulators, and are already being deployed by local law enforcement agencies across the country:
   1. Facial recognition systems: According to a report by the Georgetown University School of law, “nearly half of all American adults have been entered into law enforcement facial recognition databases.” Facial recognition uses software to compare a photo of any person against databases, such as databases maintained by the DMV and which hold everyone’s driver’s license photo. It is widely used in California: at least 16 law enforcement agencies use the technology. In San Diego alone, according to an NBC report, “there are 433 devices used by 991 law enforcement personnel.” All law enforcement agencies in Los Angeles County have access to facial recognition software.
   2. Portable biometric scanners: This type of technology is similar to facial recognition software and can come in many forms, such as an app on a phone or a dedicated mobile device that can analyze a person’s physical characteristics, such as a fingerprint or an eyeball. Like many other surveillance technologies, the data is often sent to central databases. According to the Electronic Frontier Foundation, “the technology can be used to capture people's biometric data and add it to biometric databases, regardless of whether their identity is in question.” It’s not known how many law enforcement agencies in the state use the technology, though the LA County Sheriff has signed a six year contract with a company to provide biometric services.
   3. Social media scrubbers: This technology, such as Geofeedia and Media Sonar, allow law enforcement agencies to monitor online activity on websites such as Facebook and Twitter. It is often deployed to monitor protest events. For example, Oakland Police admitted to using the technology to monitor Black Lives Matter protests. At least 21 law enforcement agencies across the state use it. Local agencies that have bought the technology have neither allowed for public discussion nor developed basic privacy and use policies before deployment.
   4. Portable surveillance cameras: These devices, like those made by Reconyx, can be placed anywhere and take pictures of anyone that crosses their path, regardless of whether or not they are a criminal, or even suspected of being one. Unlike more traditional video surveillance equipment, these cameras do not capture continuous footage. Rather, they capture still images. The small town of Orinda in the Bay Area deployed 13 cameras, and over a 90-day period roughly 5.7 million pictures were taken. How many law enforcement agencies deploy the technology statewide is unknown, but at least 13 different agencies in the Bay Area deploy them.
   5. Video surveillance: Seen frequently in public settings, this type of technology 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, 365 days a year. Cameras are often capable of zooming in and in some cases, can record sound. Footage is often stored in centralized databases. Cameras can also be controlled remotely. At least 61 departments have surveillance cameras, though only three of the departments have any type of privacy or use policy.
   6. Drones: At least three local law enforcement agencies use drones to perform surveillance. The devices, just like those used by hobbyists, are outfitted with cameras that can capture video footage, which can be transmitted to centralized databases.
   7. Radar systems: This technology, such as the product Range-R, uses radio waves to see inside a structure, such a home. Originally deployed in war zones, the technology, which is handheld and highly portable, can be used by an officer who is standing even more than 50 feet away to detect whether someone is inside a house. How many California law enforcement agencies use the technology is unknown, but federal law enforcement agencies, such as the FBI, do use the technology.
2. This bill in practice: Recognizing the wide and ever-changing array of surveillance technologies at the disposal of law enforcement, this bill is intended to create a kind of all-encompassing public notice regime for surveillance technologies, now and in the future. The definition of surveillance technology is purposely left open-ended for exactly that reason.
   
   Structurally, the bill would require law enforcement agencies to create a Surveillance Use Policy 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 policy should be in place before the technology is used or acquired, and policies 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.

The bill also requires that an agency publish a Surveillance Technology Use Report at least once every two years, describing the costs of the technology, its frequency of use, the types of data collected, circumstances of sharing, employees using it, and noncompliance incidents.

Violations of the statute would be remediable by an injunction plus attorneys' fees and court costs. Law enforcement agencies would be required to take "appropriate disciplinary action, consistent with the agency's existing disciplinary procedures" against employees who knowingly or intentionally misuse the surveillance technology.

1. Arguments in support: According to the Electronic Frontier Foundation, "Under SB 21, the power to decide whether or not to adopt new surveillance technologies would rest instead with the elected bodies that govern police departments and other public agencies. Most importantly, SB 21 would require these governing bodies to provide the general public with an opportunity to comment on proposed surveillance technologies and use policies for these technologies, before deciding whether to adopt them. This will ensure community control over decision-making about these powerful spying tools."

According to the Council on American-Islamic Relations, "The process contained in SB-21 has demonstrated viability. California communities as diverse as Santa Clara, Calexico and Oakland have reacted in anger to secretive planned deployments and expressed mistrust of law enforcement after civil rights abuses have occurred. As the pace of surveillance equipment acquisition and use increases and technology continues to innovate, these kinds of challenges will become more and more frequent for local governments. Cities and counties throughout the Bay Area have are moving towards voluntarily implementing local ordinances mandating these kinds of requirements to improve police-community relations, improve transparency and fiscal responsibility, set up appropriate checks and balances, and protect vulnerable communities."

1. Arguments in opposition: According to the Peace Officers Research Association of California, "Oftentimes, public safety uses surveillance technology that must remain confidential in order to enhance the efficacy of the technology and to protect its use from being blocked, abused or evaded. Just as law enforcement does not openly discuss specialized tactics such as SWAT Team maneuvers, bomb threat technologies or other specialized tactics, they should not be forced to publicize their technology or the technology being used in these same dangerous situations." 
   
   According to the California 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 21 requires the surveillance policy to detail the types of surveillance used, what data can 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 related to lawful surveillance techniques."
   
   The California Peace Officers Association (CPOA) writes "Mandating adherence to the Surveillance Policy provisions in SB 21 will also deter and delay agencies’ abilities to obtain new and innovative technology and that burden to be placed upon law enforcement in California, who are already asked to do so much with so little resources cannot be supported by CPOA members. Many of these technologies are often under court order, or used in conjunction with other state and federal agencies. SB 21 would unwisely expose those partner agency uses of the systems as well."

According to the League of California Cities (LCC), which opposes the bill unless amended, "Respectfully, the blanket application of the Brown Act to governing body deliberations about both surveillance policies and the underlying technology that may be used pursuant to those policies, represents an approach that we believe to be unwise. We agree…that such a requirement could potentially provide criminals with a road map as to how to evade law enforcement surveillance altogether."

"[LCC] seek[s] the following amendment[] to address these deficiencies in the bill and remove our opposition: First, local governing bodies should be expressly authorized to go into closed session at any time to discuss any surveillance technology and the policy that would guide its use. A summary report of the decisions made would then subsequently be released to the public. To proceed with this legislation under any other protocol undermines any public safety benefit that might arise from law enforcement use of surveillance technology, as it places a wealth of information at the disposal of not just the citizens of the community, but the criminals who would prey upon them."

According to the California District Attorneys Association (CDAA), "…there are already specific laws related to wire taps, GPS trackers, license plate readers, cell site simulators, and the California Electronic Communications Privacy Act (CalECPA). There is also a great deal of case law limiting how law enforcement can use any other surveillance technology, like thermal imaging, pole cameras, drones, or any device that can reveal information from an area where a person has a reasonable expectation of privacy. Further, California has existing data retention laws and rules related to public access to government data. Currently, nearly every technology that would fit within this law can be used only after court authorization. Thus, this bill would impose handicaps on law enforcement without providing any meaningful increase to personal privacy protections."

CDAA raises other issues as well, such as the open nature of the definition of "surveillance technology", which they fear would leave too much to interpretation and lead to absurd results, such as including digital cameras but excluding film cameras.

1. The "governing body" question for county officers: One point of contention around this bill has to do with its general requirement that a "law enforcement agency" – except for DOJ and CHP – submit its Surveillance Use Policy to its "governing body" for approval, and if approval is denied, so is use of the technology. While this dynamic makes sense in a city context, where a city council could approve or deny a police department's proposed policy, it appears to be more problematic at the county level.
   
   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.
2. Considerations for the Committee and suggested amendments: In discussions with the author's office, a number of issues and clarifications have been raised – some substantive and some technical – that would improve the operational of the bill. As such, the author and the Committee may wish to consider the following suggested amendments:
   1. Remove county sheriffs and district attorneys from direct board approval of policies: In keeping with the discussion above in 7) regarding the potential investigatory impact of use policy disapproval on a sheriff or DA, county sheriffs and district attorneys should not be required to secure policy approval in order to use surveillance technology; they should instead be required to create, publicly hear and post a use policy but without requiring governing body approval, identical to the requirements for DOJ and CHP. This shift should apply to all of the requirements throughout the statute. However, at the author's request, it could be made clear that two public agencies may hold the required public hearings in a joint session.
   2. Clarify the definition of "governing body": The definition of a "governing body" should be clarified to prioritize an elected overseeing body over an appointed one, in the event that a law enforcement agency believes it is directly overseen by both types of such bodies.
   3. Clarify that the authority of governing bodies remains unaffected: In creating new requirements for some, but not all, law enforcement agencies to secure governing body approval to use new surveillance technologies, it should be clarified that nothing in the statute should be construed to affect the existing authority of a governing body to approve or deny a request to acquire surveillance technology.
   4. Revise data requests: The Surveillance Technology Use Report required of every law enforcement agency every two years should be revised in its descriptions of the data it must contain. Specifically, the cost report should provide the initial acquisition cost and the annual operating cost. Furthermore, in cases where technology was borrowed from or lent to another agency, the identity of that agency should be disclosed.
   5. Exclude data hosting from the bill. The bill contains a prohibition on the sale, sharing, or transfer of surveillance technology information, except as permitted under the use policy and only to another law enforcement agency. While these restrictions are entirely appropriate, they might unwittingly cause problems for third party companies that provide data storage, management and transfer for law enforcement. SB 34 (Hill) contained an exemption for data hosting companies for that reason, and this bill should add the same exemption.
3. Previous legislation: SB 34 (Hill) Chapter 532, Statutes of 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), Chapter 659, Statutes of 2015, established requirements that local agencies must fulfill before acquiring cellular communications interception technology.

SB 893 (Hill) of 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 27, 2017 and passed on a 4 to 2 vote.

REGISTERED SUPPORT / OPPOSITION:

Support

Asian Law Alliance

California Civil Liberties Advocacy

Conference of California Bar Associations

Council on American-Islamic Relations, California (CAIR-CA)

Electronic Frontier Foundation

San Jose Peace & Justice Center

Opposition

Association of Orange County Deputy Sheriffs

California District Attorneys Association

California Peace Officers’ Association

California Police Chiefs Association

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 Sheriff’s Department

Peace Officers Research Association of California

Riverside Sheriffs’ Association

Sacramento County Deputy Sheriffs’ Association

San Bernardino County Sheriff's Department

Analysis Prepared by: Hank Dempsey / P. & C.P. / (916) 319-2200

Date of Hearing: June 27, 2017

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 21

Author:(Hill) – As Amended Ver:May 26, 2017

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, 2018, 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 liberty.
   
2. Provides that the Surveillance Use Policy shall be in writing and made publicly available on the agency’s 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, 2018, the Department of Justice (DOJ) and the Department of California Highway Patrol (CHP) 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 shall be in writing and available on the agency’s Internet Web site.
   
5. Provides that the policy shall pertain to any surveillance technologies already in use by the law enforcement agency and 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.
   
6. Specifies what each section of the policy covering a separate technology shall include.
   
7. Provides that after July 1, 2018, 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.
   
8. Requires the amendment to be submitted prior to the acquisition of the technology and be submitted to the governing body at a properly noticed hearing and be in writing and publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
   
9. Provides that if the DOJ or CHP intends to acquire a new type of surveillance technology after the adoption of the policy, they shall hold a notice public hearing and provide an opportunity for public comment before adopting the amends.
   
10. Provides that if before July 1, 2018, 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.
    
11. Provides that at a time interval agreed to by the law enforcement agency and the governing body, a law enforcement agency shall submit a report on its surveillance use of approved technologies to the governing body and that report shall be made available on the agency’s Internet Web site.
    
12. Specifies the minimum information to be included in the report.
    
13. Provides that a law enforcement agency may temporarily acquire or temporarily use a surveillance technology in exigent circumstances unless that acquisition or use conflicts with or is preempted by state or federal law and if the specified requirements are followed.
    
14. Provides 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. Includes the following definitions 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.”
       
17. 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, "SB 21 expands the transparency requirements established for automatic license plate readers and cell-phone tracking devices established in 2015 to all surveillance technologies used by law enforcement agencies. This means surveillance technology will subject to public disclosure and local legislative review. Surveillance technologies must be governed by a Surveillance Use Policy and law enforcement agencies must submit biannual surveillance reports. The bill provides an exigent circumstances provision to law enforcement, which allows them to use unapproved surveillance devices in emergency situations.

“Over 100 law enforcement agencies in the state are thought to use some type of surveillance technology and many deploy multiple kinds without any public oversight or rules of the road. These are powerful devices that can collect a wide array of information allowing even the smallest of law enforcement agencies to cheaply and easily know where you go, who you speak with, and what you do.

“While technology can be used to improve public safety, its use should be balanced with reasonable safeguards for civil liberties and elected officials have the responsibility of safeguarding the rights to civilian oversight, privacy and other civil liberties, as we strive for a safer environment. SB 21 proposes reasonable safeguards to ensure that law enforcement is held accountable for how they use surveillance technologies – that they are used only to fight crime, as they are intended to do.”

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 a similar approach the Santa Clara County Ordinance.

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: Opposition to this bill has pointed out that the requirement that county sheriffs and district attorneys get approval from the county board of supervisors before using surveillance technology is potentially in conflict with an existing statute.
   
   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. However, the language of Government Code § 25303 does raise the potential for conflict with the language of this bill. If the Legislature intends that the provisions of this bill requiring approval by the board of supervisors apply to sheriffs and district attorneys, notwithstanding Government Code § 25303, then clarification might be appropriate. This concern does not apply to any of the other law enforcement agencies covered in this bill.
   
3. Argument in Support: According to the Electronic Frontier Foundation, “All too often, government executives unilaterally decide to adopt powerful new surveillance technologies that invade our privacy, chill our free speech, and unfairly burden communities of color. These intrusive and proliferating tools of street-level surveillance include drones, cell-site simulators, surveillance cameras, and automated license plate readers.
   
   “Under S.B. 21, the power to decide whether or not to adopt new surveillance technologies would rest instead with the elected bodies that govern police departments and other public agencies. Most importantly, S.B. 21 would require these governing bodies to provide the general public with an opportunity to comment on proposed surveillance technologies and use policies for these technologies, before deciding whether to adopt them. This will ensure community control over decision-making about these powerful spying tools.”
   
4. Argument in Opposition: According to the California State Sheriff’s Association, “This bill will dangerously provide a roadmap to criminals as to how and when law enforcement agencies deploy surveillance technology and techniques. SB 21 requires the surveillance policy to detail the types of surveillance used, what data can 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.
   
   “We are also concerned about the requirement that sheriffs submit the initial policy for approval, as well as amendments based on future technology acquisition, to the county board of supervisors. Sheriffs are independent elected officials and respectfully should not be required to obtain the approval of the board of supervisors before determining how to best carry out their duty to protect the public safety. In fact, by limiting the ability of the sheriff to acquire surveillance technology without the prior consideration of the policy by the board, SB 21 likely violates Government Code Section 25303, which states, in relevant part, ‘The board of supervisors shall not obstruct the investigative function of the sheriff of the
   county . . .’”
   
5. Related Legislation:
   
   1. SB 466 (Bates), 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 vehicle is the subject of an AMBER Alert. SB 466 is awaiting hearing in the Assembly Privacy and Consumer Protection Committee.
   2. AB 401 (Aguiar-Curry), would require a remote dispensing site pharmacy to utilize certain security measures, including capturing and retaining a recording of facility surveillance for 90 days. AB 401 is awaiting hearing in the Senate Committee on Business, Professions, and Economic Development.
   3. AB 1185 (O’Donnell), 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 awaiting hearing in the Senate Judiciary Committee.
      
6. Prior Legislation:
   
   1. 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.
      
   2. 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.
      
   3. 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.
      
   4. 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.
      
   5. 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.
      
   6. 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.
      
   7. 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

Asian Law Alliance
California Civil Liberties Advocacy
California Attorneys for Criminal Justice
California Public Defenders Association
Conference of California Bar Associations
Council on American-Islamic Relations, California
Electronic Frontier Foundation
Firearms Policy Coalition
San Jose Peace & Justice Center

Opposition

Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
Association of Orange County Deputy Sheriffs

California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs’ Association
California Statewide Law Enforcement Association
Fraternal Oder of Police
League of California Cities
Long Beach Police Officers Association
Los Angeles County Probation Officers Union, AFSCME local 685
Los Angeles County Professional Peace Officers Association
Los Angeles County Sheriff’s Department
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs’ Association
Sacramento County Deputy Sheriffs’ Association
Sheriff of San Bernardino, John McMahon

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 21

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-2, 3/21/17

AYES: Skinner, Bradford, Mitchell, Wiener

NOES: Anderson, Stone

NO VOTE RECORDED: Jackson

SENATE JUDICIARY COMMITTEE: 5-2, 4/25/17

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: Author

DIGEST:

This bill requires local law enforcement agencies to have a policy, approved by the local governing body, in place before using surveillance technology as defined.

ANALYSIS:

Existing 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. Requires, under federal regulations, 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.
3. Establishes a Division of Aeronautics within the California Department of Transportation. (Public Utilities Code §§ 21001 et seq)
4. Prohibits wiretapping or eavesdropping on confidential communications. (Penal Code § 630.)
5. 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.)
6. 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).)
7. 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).)
8. 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. Provides that on or before July 1, 2018, 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 liberty.
2. Provides that the Surveillance Use Policy shall be in writing and made publicly available on the agency’s 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, 2018, the Department of Justice (DOJ) and the Department of California Highway Patrol (CHP) 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 shall be in writing and available on the agency’s Internet Web site.
5. Provides that the policy shall pertain to any surveillance technologies already in use by the law enforcement agency and 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 of each surveillance technology used by the law enforcement agency.
6. Specifies what each section covering a separate technology shall include.
7. Provides that after July 1, 2018, 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. The amendment shall be submitted prior to the acquisition of the technology and shall be submitted to the governing body at a properly noticed hearing and be in writing and publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
8. Provides that if the DOJ or CHP intends to acquire a new type of surveillance technology after the adoption of the policy they shall hold a notice public hearing and provide an opportunity for public comment before adopting the amends.
9. Provides that if before July 1, 2018, 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.
10. Provides that at a time interval agreed to by the law enforcement agency and the governing body, a law enforcement agency shall submit a report on its surveillance use of approved technologies to the governing body and that report shall be made available on the agency’s Internet Web site.
11. Provides what the report shall include at a minimum.
12. Provides that a law enforcement agency may temporarily acquire or temporarily use a surveillance technology in exigent circumstances unless that acquisition or use conflicts with or is preempted by state or federal law and if the specified requirements are followed.
13. Provides that nothing in this bill shall be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology.
14. 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.
15. Includes the following definitions:
    1. Exigent circumstances – 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 – 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.
    4. Surveillance technology – 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.

Background

According to the author:

California enacted two laws in 2015 – SB 34 & SB 741 – that require 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, both of which are surveillance technologies intended to collect wide-ranging information on members of the public. The laws also generally require a public discussion before either of the surveillance technologies are deployed.

While these laws appropriately balance protecting Californian’s civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, they are only applicable to two specific technologies. The laws do not apply to the other surveillance technologies used by the police.

Increasingly, law enforcement agencies are using a wider array of surveillance technologies as they become available. The technologies include: facial recognition, social media scrubbers, radar, and more. 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.” The data collected with the surveillance devices can be stored for undefined periods of time, often in large, regional databases.

While surveillance technologies can help improve public safety, the proliferation of the technologies has also profound impacts on Californians civil liberties and privacy. As police agencies continue to use a varied array of surveillance devices, they gain a greater ability to capture detailed information about where people go, who they associate with, what they say, and more. There should be laws in place to ensure that surveillance devices are only used for their intended purposes – to catch criminals and fight crime – and not to collect vast amounts of data on a wide array on non-criminal residents.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Surveillance Use Policy: Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars (local funds/General Fund) to local law enforcement agencies to develop a Surveillance Use 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.

One-time costs of $26,500 and ongoing costs of over $400,000 to the DOJ to hire new staff in the central valley, northern California, and southern California regions to collect, maintain, and compile data.

• Surveillance Technology Use Report: Unknown, potentially-significant and likely-reimbursable intermittent costs ranging in the tens of thousands of dollars (local funds/General Fund) to create a report on technology use at least one every two years.

SUPPORT: (Verified 5/25/17)

California Attorneys for Criminal Justice

California Civil Liberties Advocacy

California Public Defenders Association

Conference of California Bar Associations

Conference of California Bar Associations

Electronic Frontier Foundation

Media Alliance

Oakland Privacy

OPPOSITION: (Verified 5/25/17)

Association of Orange County Deputy Sheriffs

California District Attorneys Association

California Peace Officers’ Association

California Police Chiefs Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Courage Campaign

Fraternal Order of Police

Long Beach Police Officers Association

Peace Officers Research Association of California

Root & Rebound

Sacramento County Deputy Sheriffs’ Association

San Bernardino County Sheriff

ARGUMENTS IN SUPPORT: The Electronic Frontier Foundation supports this bill stating:

All too often, government executives unilaterally decide to adopt powerful new surveillance technologies that invade our privacy, chill our free speech, and unfairly burden communities of color. These intrusive and proliferating tools of street-level surveillance include drones, cell-site simulators, surveillance cameras, and automated license plate readers.

Under S.B. 21, the power to decide whether or not to adopt new surveillance technologies would rest instead with the elected bodies that govern police departments and other public agencies. Most importantly, S.B. 21 would require these governing bodies to provide the general public with an opportunity to comment on proposed surveillance technologies and use policies for these technologies, before deciding whether to adopt them. This will ensure community control over decision-making about these powerful spying tools.

ARGUMENTS IN OPPOSITION: The Peace Officers Research Association of California opposes this bill stating:

Oftentimes, public safety uses surveillance technology that must remain confidential in order to enhance the efficiency of the technology and to protect its use from being blocked, abused or evaded. Just as law enforcement does not openly discuss specialized tactics such as SWAT team maneuvers, bomb threat technologies or other specialized tactics, they should not be forced to publicize their technology or the technology being used in these same dangerous situations.

Prepared by:

5/27/17 17:40:34

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 21 (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, 2017

Bill Summary:

SB 21 would require 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.

Fiscal Impact:

• Surveillance Use Policy (SUP): Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars (local funds/General Fund) to local law enforcement agencies to develop a SUP 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.

One-time costs of $26,500 and ongoing costs of over $400,000 to the Department of Justice to hire new staff in the central valley, northern California, and southern California regions to collect, maintain, and compile data.

• Surveillance Technology Use Report: Unknown, potentially-significant and likely-reimbursable intermittent costs ranging in the tens of thousands of dollars (local funds/General Fund) to create a report on technology use at least one every two years.

Author Amendments:

Limit state agencies required to comply with the provisions of this bill to the Department of Justice and the California Highway Patrol, and include appointed body within the definition of governing body.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 21 (Hill) - Law enforcement agencies: surveillance: policies

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

Bill Summary:

SB 21 would require public 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.

Fiscal Impact:

• Surveillance Use Policy (SUP): Unknown, potentially-significant and likely-reimbursable costs ranging in the thousands to the low hundreds of thousands of dollars (local funds/General Fund) to local and state agencies that employ peace officers to develop a SUP 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.
• Surveillance Technology Use Report: Unknown, potentially-significant and likely-reimbursable intermittent costs ranging in the tens of thousands of dollars (local funds/General Fund) to create a report on technology use at least one every two years.

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 who 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:

• Require a public agency that uses or accesses information from surveillance technology to submit to its governing body, on or before July 1, 2018, a SUP 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 SUP would have to be in writing and made publicly available on the agency’s website prior to the public hearing and after adoption.
• Require this initial SUP to pertain to any surveillance technologies already in use or relied upon for information by the public agency.
• 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, but not be limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, international mobile subscriber identity (IMSD) trackers, global positioning system (GPS) technology, radio-frequency identification (RFID) technology, biometrics-identification technology, and facial-recognition technology. It would not include standard public agency computers and software, fingerprint scanners, ignition interlock devices, cell phones, two-way radios, or other similar electronic devices.
• Define “public agency” as including any agency employing “peace officers,” as that latter term is defined.
• Require the governing body to consider the SUP 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.
• Define “governing body” as the elected body that oversees the public agency or the public agency’s corresponding geographic area in the case of a county sheriff.
• Provide that if a submitted SUP is not adopted by the governing body, the public agency shall cease use of surveillance technologies within 30 days of the hearing and until such time as a SUP is adopted.
• Require the SUP 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 public agency, as specified.
• Require a public agency that intends to acquire, use, or access information from a new type of surveillance technology, after July 1, 2018, and after the adoption of the initial SUP, to submit an amendment to the SUP to its governing body for approval to include the new type of technology as a new section of the SUP 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 public agency could request funds for, acquire, use, or access information from the new technology.
• Provide the governing body considering any amendment 30 days. If the submitted amendment is not adopted in that time frame, this bill would prohibit a public agency from requesting funds for, acquiring, using, or accessing information from the new surveillance technology.
• Require a public agency that uses surveillance technology and which has an approved SUP 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 public agency and the governing body, but no less often than every two years.
• Require that the Report be made publicly available on the agency’s website and include certain specified information.
• Provide that this measure is not be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology. A governing body would be able to reevaluate any existing SUP at a properly noticed public meeting and revoke or request amendments to such SUP.
• Prohibits a public agency from selling, sharing, or transferring information gathered by surveillance technology, except to another public agency, and only as permitted by law and as allowed by an approved SUP.
• Provide that if, before July 1, 2018, a public agency has implemented the requirements for automated license plate readers or for cellular communications interception technology, the law enforcement agency shall include the required information as part of the initial SUP required by this bill.
• 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 state or federal law.
• 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.
• Provide that if a law enforcement agency acquires or uses a surveillance technology in exigent circumstances, the agency shall report that acquisition or use to the governing body within 45 days following the end of the exigent circumstances, return the technology within seven days or when the exigency ends unless it submits an amendment to the agency’s SUP for the technology and it is approved by the governor body. If the agency is unable to comply with the seven-day timeline, the agency would be required to notify the governing body, which could grant an extension.
• Provide a private right of action to an individual harmed by a violation of this bill against a person who knowingly caused such a violation. This right would be in addition to any other sanctions, penalties, or remedies provided by law. The court in such an action would be enabled to award a combination of specified damages, attorney’s fees, and/or equitable relief, as specified.

Staff Comments:

This bill would require public agencies that employee peace officers to develop and post on their websites a robust SUP, a policy that many agencies currently do not have. A new SUP, 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 the Department of Justice (DOJ), the Department of Corrections and Rehabilitation (CDCR), and the California Highway Patrol (CHP).

This bill would require the public agency employing peace officers to submit the SUP to its governing body, that is, the elected body that oversees the public agency or the jurisdiction of the public agency. While it is clear that the governing body for a police department is the city council and the county board of supervisors for the sheriff, it is unclear who the governing body is for a state public agency. For example, the only elected bodies who oversee CDCR, CHP, the Department of Fish and Wildlife, CalFire, the Department of Motor Vehicles, and a whole host of other state departments, boards, and bureaus that employ peace officers are the Governor and the Legislature. In the case of DOJ, the Attorney General would be the elected governing body overseeing the department. Consequently, this bill presumably would require the Legislature to hold a regularly-scheduled public meeting pursuant to the Brown Act, something which the Legislature is not subject to currently, to approve SUPs for a large number of peace officer-employing state public agencies. This could result in significant state costs. The author may wish to clarify how the approval process for the SUP works for state entities if the intent is for this measure to apply to both state and local public agencies.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 21 (Author:Hill)

Version: April 17, 2017

Hearing Date: April 25, 2017

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Law enforcement agencies: surveillance: policies

DESCRIPTION

This bill would require any public agencies 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. The policy would have to be submitted to and approved by the public agency’s governing body. 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 and approved before a public agency could request funds for, acquire, use, or gain information from a new surveillance technology. Anyone harmed by a violation of these provisions would be entitled to bring a civil action against the person who knowingly committed that violation.

BACKGROUND

As technologic advances abound, law enforcement and other public agencies have incorporated a wide variety of surveillance technologies into their operations. The 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. This bill attempts 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 proposes to install reasonable safeguards to preserve the protection of civil liberties and privacy.

This bill would do so by requiring any public agency that uses or accesses information from surveillance technology to submit to the elected body overseeing it 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 public 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 public 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 one exemption from these procedures if a law enforcement agency has a good faith belief that an emergency involving danger or 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 harmed by a violation of this section or of any underlying Policy would be able to bring a civil action against a person who knowingly caused that violation. The court would be permitted to award actual damages, liquidated damages, punitive damages, attorney’s fees and costs, and/or other preliminary and equitable relief as determined appropriate.

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 require a public agency that uses or accesses information from surveillance technology to submit to its governing body, on or before July 1, 2018, 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 this initial Policy to pertain to any surveillance technologies already in use or relied upon for information by the public agency.

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, but not be limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, international mobile subscriber identity (IMSD) trackers, global positioning system (GPS) technology, radio-frequency identification (RFID) technology, biometrics-identification technology, and facial-recognition technology. It would not include standard public agency computers and software, fingerprint scanners, ignition interlock devices, cell phones, two-way radios, or other similar electronic devices.

This bill would define public agency as the state, any city, county, or city and county, or any agency or political subdivision of the state or a city, county, or city and county, including, but not limited to, a law enforcement agency.

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.

This bill would define “governing body” as the elected body that oversees the public agency or the public agency’s corresponding geographic area in the case of a county sheriff.

This bill would provide that if a submitted Policy is not adopted by the governing body, the public agency shall cease use of surveillance technologies within 30 days of the hearing and until such time as a Policy is adopted.

This bill would require the Policy 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 public 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;
• a description of the training (required by this bill) that is required 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 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 public agency that intends to acquire, use, or access information from a new type of surveillance technology, after July 1, 2018, 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 public 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. If the submitted amendment is not adopted in that time frame, this bill would prohibit a public agency from requesting funds for, acquiring, using, or accessing information from the new surveillance technology.

This bill would require a public agency 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 public 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 total costs for each surveillance technology, including personnel costs;
• a description of how many times each type of technology was used in the preceding year and how many times each type of technology helped apprehend suspects or close a criminal case;
• a description of the type of data collected by each surveillance technology, including whether each technology captured images, sound, or other data;
• the number of times and the purposes for which surveillance technology was borrowed from or lent to another agency, including technologies used under exigent circumstances;
• the number and classification of the agency employees trained and authorized to use each type of surveillance technology, along with a description of the training provided to agency employees on each type of surveillance technology and how often the training was provided; and
• disclosure of whether 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 it shall not be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology. A governing body would be able to reevaluate any existing Policy at a properly noticed public meeting and revoke or request amendments to such Policy.

This bill would provide that a public agency shall not sell, share, or transfer information gathered by surveillance technology, except to another public agency, and only as permitted by law and as allowed by an approved Policy.

This bill would provide that if, before July 1, 2018, a public agency has implemented the requirements for automated license plate readers 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 of Part 1 of Division 2 of Title 5 of the Government Code, the law enforcement agency shall include the required information as part of the initial Policy required by this bill.

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 state or federal law.

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 provide that if a law enforcement agency acquires or uses a surveillance technology in exigent circumstances, the agency shall report that acquisition or use to the governing body within 90 days following the end of the exigent circumstances, submit an amendment to the agency’s Policy for the technology that was acquired or used, and also include the technology and its use in the agency’s Report. If the agency is unable to comply with the 90-day timeline, the agency would be required to notify the governing body, which could grant an extension.

This bill would provide a private right of action to an individual harmed by a violation of this bill against a person who knowingly caused such a violation. This right would be in addition to any other sanctions, penalties, or remedies provided by law. The court in such an action would be enabled to award a combination of any one or more of the following:

• actual damages, but not less than liquidated damages in the amount of two thousand five hundred dollars ($2,500);
• punitive damages upon proof of willful or reckless disregard of the law;
• reasonable attorney’s fees and other litigation costs reasonably incurred; and
• other preliminary and equitable relief as the court determines to be appropriate.

COMMENT

1. Stated need for the bill

According to the author:

California enacted two laws in 2015 – SB 34 & SB 741 – that require 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, both of which are surveillance technologies intended to collect wide-ranging information on members of the public.

While these laws appropriately balance protecting Californian’s civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, they are only applicable to two specific technologies. The laws do not apply to the other surveillance technologies used by the police. Increasingly, law enforcement agencies are using a wider array of surveillance technologies as they become available. The technologies include: facial recognition, social media scrubbers, radar, and more.

While surveillance technologies can help improve public safety, the proliferation of the technologies has also profound impacts on Californian’s civil liberties and privacy. As police agencies continue to use a varied array of surveillance devices, they gain a greater ability to capture detailed information about where people go, who they associate with, what they say, and more. There should be laws in place to ensure that surveillance devices are only used for their intended purposes – to catch criminals and fight crime – and not to collect vast amounts of data on a wide array on non-criminal residents.

SB 21 will build on the requirements already in effect for license plate readers and cell-intercept devices.

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 build upon that fundamental right by requiring public 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 public agencies throughout California. California residents may be less willing to exercise their associational and expressive freedoms if they know that public agencies can track their movements and behaviors without any transparency or oversight. This bill seeks to strengthen California residents’ fundamental right to privacy by requiring public agencies to develop and abide by Surveillance Use Policies that are vetted by elected officials 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 all public agencies 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 public 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 residents to have a voice in deciding whether their community should adopt any proposed technology.

One exception would be available to public agencies. This bill would authorize a public agency to temporarily acquire or use a surveillance technology in “exigent circumstances,” without following the procedures otherwise mandated for such acquisition and use. Writing in opposition, the California District Attorneys Association (CDAA) states that this bill “fails to include any sort of exigent circumstances exception.” However, this provision seems to clearly meet this concern.

Currently, the exigent circumstances section of this bill would require the public agency to report the acquisition and use of surveillance technology pursuant to its provisions to the governing body “within 90 days following the end of the exigent circumstances.” There is currently no limit to how long “exigent circumstances” can be deemed to last. In response to some concerns over this exception, the author has agreed to amend the exigent circumstances section as indicated below. This amendment will tighten the exception and work towards ensuring the exception does not undermine the protections afforded by this bill.

Author’s Amendment:

Replace current Section 54999.95 with the following:

(a) A public agency may temporarily acquire or temporarily use a surveillance technology in a manner not expressly allowed by a Surveillance Use Policy in exigent circumstances without following the provisions of Section 54999.85 before that acquisition or use unless that acquisition or use in exigent circumstances conflicts with, or is preempted by, other state or federal law.

(b) If a public agency acquires or uses a surveillance technology in exigent circumstances, the agency shall:

(1) Use the surveillance technology to solely respond to the exigent circumstances.

(2) Cease using the surveillance technology when the exigent circumstances end.

(3) Only keep and maintain data related to the exigent circumstances and dispose of any data that is not related to the exigent circumstances.

(4) Report that acquisition or use to the governing body within 45 days following the end of the exigent circumstances.

(c) Any technology temporarily acquired in exigent circumstances shall be returned within 7 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 Government Code Section 54999.85 subsections (a)-(c) and approved. If the agency is unable to comply with the 7-day timeline, the agency shall notify the governing body, who may grant an extension.

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 public agency using any form of surveillance technology does not develop an adequate Policy, the governing body can prevent the public 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 who is accessing it, how they are accessing it, and why. This would provide a certain layer of accountability, rather than allow anonymous access to the technologies and the data.

Writing in support, Electronic Frontier Foundation, Oakland Privacy, and Media Alliance state that the requirement that governing bodies provide the public an opportunity to comment on proposed surveillance technologies will “ensure community control over decision-making about these powerful spying tools.”

This bill would also mandate each public 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.

In addition, this bill would provide a right of action for a person “who has been harmed by a violation of this section.” Although it might be difficult to prove “harm” in such a situation, a potential plaintiff would be entitled to at least $2,500 in liquidated damages for each violation and punitive damages for particularly egregious situations. This provision would provide another layer of accountability and oversight over the public agencies using these sorts of surveillance technologies. However, the wording of this section may need to clarify that the right of action extends to violations of the underlying Policies themselves. Currently, this section could plausibly be interpreted to apply only to violations of the requirement to develop Policies, have them adopted, and report on them.

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, but not be limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, international mobile subscriber identity (IMSD) trackers, global positioning system (GPS) technology, radio-frequency identification (RFID) technology, biometrics-identification technology, and facial-recognition technology.” This bill would specifically exclude from this definition “standard public agency computers and software, fingerprint scanners, ignition interlock devices, cell phones, two-way radios, or other similar electronic devices.”

Some issues have been raised regarding what becomes excluded through this definition. For instance, the CDAA writes that “if a detective is on a stakeout and wants to take pictures of a suspect entering a house, a digital camera would fit the definition, but an older film camera would not.” Another example is cell phones, which are almost universally equipped with cameras and microphones that can be used to video or record audio. This would present a possibly gray area, but 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” cell phones, as that term is used in the exclusion, or at the very least the technology added to the standard cell phone would be considered “Surveillance Technology” in and of itself that would need to be identified in a public agency’s Policy.

6. Other definitions

This bill defines “public agency” to mean the state, any city, county, or city and county, or any agency or political subdivision of the state or a city, county, or city and county, including, but not limited to, a law enforcement agency. One issue that has arisen is that this definition may include agencies that fall well outside of the intended target. For instance, a local water district operating a camera at a dam would currently require them to submit a surveillance use policy. Such an application of this bill would likely fall outside of its intended target. In response to such concerns, the author has agreed to take the following amendment in committee.

Author’s amendment:

Section 54999.8(c) should be amended to read:

"Public agency" includes any agency employing peace officers, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code.

This amendment will ensure that the agencies intended to be targeted by this bill, such as local law enforcement, sheriffs’ departments, and district attorneys’ offices, will still be included, while excising other entities not involved in the types of surveillance contemplated by this bill. It should be noted that although under this new definition the water district might not need to submit a policy for the use of its camera in the example above, if the camera was situated so as to capture images of individuals or groups, another agency that employs peace officers that sought to use footage from the cameras would still need to include them in a Policy.

Support: Electronic Frontier Foundation; Firearms Policy Coalition; Media Alliance; Oakland Privacy

Opposition: Association of Orange County Deputy Sheriffs; California Police Chiefs Association; California Peace Officers’ Association; California Statewide Law Enforcement Association; Fraternal Order of Police; Long Beach Police Officers Association; Peace Officers Research Association of California; Sacramento County Deputy Sheriffs’ Association

HISTORY

Source: Author

Related Pending Legislation:

SB 466 (Bates, 2017) 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 vehicle is the subject of an AMBER Alert. This bill is in the Senate Judiciary Committee.

AB 401 (Aguiar-Curry, 2017) would, in relevant part, require a remote dispensing site pharmacy to utilize certain security measures, including capturing and retaining a recording of facility surveillance for 90 days. This bill is in Assembly Appropriations Committee.

AB 1185 (O’Donnell, 2017) 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. This bill is in the Assembly Privacy and Consumer Protection Committee.

Prior Legislation:

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.

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.

ACR 30 (V. Manuel Perez, 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.

Prior Vote: Senate Public Safety Committee (Ayes 4, Noes 2)

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

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]. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 21 Hearing Date: March 21, 2017

Subject: Law Enforcement Agencies: Surveillance: Policies

HISTORY

Source: Author

Prior Legislation: 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: California Attorneys for Criminal Justice; California Civil Liberties Advocacy; California Public Defenders Association

Opposition: ACLU of California (unless amended); Asian Americans Advancing Justice - Asian Law Caucus (unless amended); Asian Law Alliance (unless amended); California District Attorneys Association; California Police Chiefs Association, California State Sheriffs’ Association; Center for Media Justice (unless amended); Center for Employment and Training - Immigration and Citizenship Program (unless amended); Coalition for Justice and Accountability(unless amended); Color of Change (unless amended); Consumer Federation of California (unless amended); Council on American-Islamic Relations – California (unless amended); Electronic Frontier Foundation (unless amended); LIVE Free Fresno (unless amended); Media Alliance(unless amended); Oakland Privacy(unless amended); Peace Officers Research Association of California; Peninsula Peace and Justice Center (unless amended); Restore the 4th SF-Bay Area(unless amended); Root & Rebound; San Jose Peace and Justice Center (unless amended); Working Partnerships USA(unless amended)

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 provides that on or before July 1, 2018 a law enforcement agency shall submit to its governing body a Surveillance Use Policy.

This bill provides that the Surveillance Use Policy shall be in writing and made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.

This bill 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.

This bill provides that the policy shall pertain to any surveillance technologies already in use by the law enforcement agency and 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 of each surveillance technology used by the law enforcement agency.

This bill provides that each section covering a separate technology shall at a minimum include 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 and, if so, how the collected information can be accessed by members of the public, including criminal defendants.

This bill provides that after July 1, 2018, 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. The amendment shall be submitted prior to the acquisition of the technology and shall be submitted to the governing body at a properly noticed hearing and be in writing and publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.

This bill provides that if before July 1, 2018, 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.

This bill provides that at a time interval agreed to by the law enforcement agency and the governing body, a law enforcement agency shall submit a report on its surveillance use of approved technologies to the governing body and that report shall be made available on the agency’s Internet Web site.

This bill provides that the report shall at minimum include the following:

• The total costs for each surveillance technology, including personnel costs.
• A description of how many times each type of technology was used in the preceding year and how many times each type of technology helped apprehend suspects or close a criminal case.
• A description of the type of data collected by each surveillance technology, including whether each technology captured images, sound, or other data.
• The number of times and the purposes surveillance technology was borrowed from or lent to another agency, including technologies used under exigent circumstances.
• The number and classification of the agency employees trained and authorized to use each type of surveillance technology, along with a description of the training provided to agency employees on each type of surveillance technology and how often the training was provided.
• Disclosure of whether any surveillance technology was used in a manner out of compliance with the agency’s policy, whether data was collected through the use of surveillance technology was inappropriately disclosed, released, or in any other way revealed for a non-approved reason, and the steps the agency took to correct the error.

This bill provides that nothing in this section shall be construed to prohibit a governing body from adopting additional protocols as they relate to surveillance technology.

This bill provides that a law enforcement agency may temporarily acquire or temporarily use a surveillance technology in exigent circumstances unless that acquisition or use conflicts with or is preempted by state or federal law.

This bill provides that if a law enforcement agency acquires or uses a surveillance technology in exigent circumstance, the agency shall report to the governing body within 90 days following the end of the exigent circumstance, submit an amendment to the agency’s Surveillance use Policy for the technology, and include the technology in the report. The governing body may grant an extension of the 90 day requirement.

This bill allows a civil action to be brought by an individual harmed by a violation of the Surveillance Technology Policy against a person who knowingly caused a violation of a surveillance policy.

This bill includes the following definitions:

• Exigent circumstances – 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.
• Governing body – ay police department, sheriff’s department, college campus, or special district agency created to enforce the law and prevent crime.
• Surveillance technology – 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.

This bill provides that surveillance technology does not includes standard electronic devices or systems that have a primary function other than monitoring or collecting audio, visual, locational, thermal or similar information on any individual or group, including but not limited to standard law enforcement agency computers and software, fingerprint scanners, ignition interlock devices, cell phones, two-way radios or other similar electronic devices.

COMMENTS

1. Need for This Bill

According to the author:

California enacted two laws in 2015 – SB 34 & SB 741 – that require 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, both of which are surveillance technologies intended to collect wide-ranging information on members of the public. The laws also generally require a public discussion before either of the surveillance technologies are deployed.

While these laws appropriately balance protecting Californian’s civil liberties and privacy with law enforcement’s ability to use the technologies to fight crime, they are only applicable to two specific technologies. The laws do not apply to the other surveillance technologies used by the police.

Increasingly, law enforcement agencies are using a wider array of surveillance technologies as they become available. The technologies include: facial recognition, social media scrubbers, radar, and more. 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.

While surveillance technologies can help improve public safety, the proliferation of the technologies has also profound impacts on Californians civil liberties and privacy. As police agencies continue to use a varied array of surveillance devices, they gain a greater ability to capture detailed information about where people go, who they associate with, what they say, and more. There should be laws in place to ensure that surveillance devices are only used for their intended purposes – to catch criminals and fight crime – and not to collect vast amounts of data on a wide array on non-criminal residents.

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: the authorized purposes for using the technology; the type of data that can be collected; the job title of the employees and independent contractors authorized to use the technology and access the data; they type of training required to use the technology; the title of the official custodian of the technology; a description of how the technology will be monitored to ensure the security of 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; purpose 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 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 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. 90 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?

Is the 90 day time fame an appropriate one? Exigent circumstances is an emergency so by it is definition should not go on too long so is allowing three months to report the use to a governing board excessive?

6. Civil action

This bill allows a person harmed by the misuse of technology to bring a civil action against a person who knowingly violated the policy. The bill specified that the person can receive actual damages, but no less than $2,500 as well as punitive damages upon proof of a willful or reckless disregard of the law. This bill will be going to Senate Judiciary next so they will likely deal with the civil penalties, but does this Committee believe the right to a civil action is appropriate?

7. Support

The California Public Defenders Association “strongly” supports this bill stating:

[L]aw enforcement has been increasingly using covert surveillance technologies for investigative purposes and has been collecting information on the citizens of this state without any written rules or oversight. While surveillance technology may enhance public safety, this does not come without significant cost to civil liberties. It is simply not sufficient for law enforcement to promise the public that will only use these technologies to investigate criminal activity. There must be some accountability and oversight over the use of these technologies that routinely permit law enforcement to surveil private citizens and collect data without oversight by any entity including the courts.

Additionally, it is essential that elected bodies who represent the citizens of these communities determine what types of surveillance may be conducted, what data may be obtained, collect and stored, as well as how the data may be used. It is the elected bodies that are directly accountable to the residents in their communities who should have the opportunity to weigh in on how these technologies are being used to police their communities.

8. Oppose unless amended

The following groups oppose this bill unless amended: ACLU of California; Asian Americans Advancing Justice - Asian Law Caucus; Asian Law Alliance; Center for Media Justice; Center for Employment and Training - Immigration and Citizenship Program; Coalition for Justice and Accountability; Color of Change; Consumer Federation of California; Council on American-Islamic Relations – California; Electronic Frontier Foundation; LIVE Free Fresno; Media Alliance; Oakland Privacy; Peninsula Peace and Justice Center; Restore the 4th SF-Bay Area; San Jose Peace and Justice Center; Working Partnerships USA. They state a number of specific concerns but state generally:

Right now, California communities such as Oakland, Santa Clara County, and the BART district have adopted or are moving forward with strong legislation that ensures transparency, accountability, and oversight for all surveillance technology proposals.^[2] Relative to SB 21, these local efforts give communities essential information about proposals, more power to evaluate proposed technologies and supervise their use, and more appropriate tools to address misuse. SB 21 substitutes an ineffective alternative for these reforms.

Local law enforcement’s secretive acquisition and use of surveillance technology disproportionately impacts California’s low income residents, people of color, and immigrants.^[3] In Oakland, the use of license plate readers by police has been concentrated in low income and black communities, according to a 2015 report.^[4] In San Jose, police secretly purchased a drone without consulting Muslim community members and other residents.^[5] In Compton, the LA Sheriff conducted secretive aerial surveillance with high-powered cameras without telling residents.^[6] Any proposed state-level legislation should enact a meaningful floor, as well as lift up local efforts to address these real problems.

Californians want robust statewide oversight of surveillance technology.^[7] As the federal government signals it will increase the use of its surveillance and enforcement powers against Muslims and immigrants, the California legislature has a special responsibility to enact strong measures that protect the most vulnerable Californians from suspicionless monitoring and the collection of information that can exploited for discriminatory ends. SB 21 does not adequately address these challenges, and it will undermine local efforts.

END –

1. 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 ↑

2. Santa Clara County enacted a surveillance technology ordinance in June 2016. http://sccgov.iqm2.com/Citizens/FileOpen.aspx?Type=4&ID=149330&MeetingID=7193. Oakland’s proposed ordinance: http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak062224.pdf. Committees and commissions for BART and in Berkeley and Palo Alto have voted to move forward with similar legislation. BART: https://www.bart.gov/sites/default/files/docs/agendas/12-21-16%20Tech%20%26%20Comm_0.pdf Palo Alto: http://www.cityofpaloalto.org/civicax/filebank/documents/56292; Berkeley: http://www.ci.berkeley.ca.us/uploadedFiles/Health_Human_Services/Commissions/Commission_for_Peace_and_Justice/01-09-17-PJC-Minutes.pdf. ↑

3. A 2014 ACLU of California survey found that at least 90 California communities were in possession of various surveillance technologies, and that public debate rarely occurred when technologies were proposed. State of Surveillance in California – Findings & Recommendations, January 2015, https://www.aclunc.org/sites/default/files/201501-aclu_ca_surveillancetech_summary_and_recommendations.pdf. ↑

4. Dave Maass, What You Can Learn From Oakland’s Raw ALPR Data, Electronic Frontier Foundation, Jan. 21, 2015, https://www.eff.org/deeplinks/2015/01/what-we-learned-oakland-raw-alpr-data. ↑

5. Thomas Mann Miller, San Jose Police Department's Secret Drone Purchase: Where's the Accountability?, ACLU-NorCal, July 30, 2014, https://www.aclunc.org/blog/san-jose-police-departments-secret-drone-purchase-wheres-accountability. ↑

6. Conor Friedersdorf, Eyes Over Compton: How Police Spied on a Whole City, The Atlantic, Apr. 21, 2014, https://www.theatlantic.com/national/archive/2014/04/sheriffs-deputy-compares-drone-surveillance-of-compton-to-big-brother/360954/. ↑

7. California Statewide Survey Finds Voters Concerned about Privacy and Want to See Reforms Made to Surveillance Technology Use by Law Enforcement, Tulchin Research, https://www.aclunc.org/docs/20150821-aclu_surveillance_privacy_polling.pdf. ↑