BILL ANALYSIS Ó
AB 56
Page 1
Date of Hearing: April 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
56 (Quirk) - As Amended April 8, 2015
SUMMARY: Regulates the use of unmanned aircraft systems (UAS)
by public agencies. Specifically, this bill :
1)Defines "UAS" as an unmanned aircraft and associated elements,
including communication links and the components that control
the unmanned aircraft, that are required for the pilot in
command to operate safely and efficiently in the national
airspace system.
2)Prohibits a public agency from using an UAS, or contracting
for the use of an UAS, except as provided in the provisions of
this bill.
3)States that a law enforcement agency may use an UAS over
public lands, highways and spaces open to the public without a
warrant.
4)Authorizes a law enforcement agency to use an UAS under 400
feet above ground level over private property if it has
obtained consent from the property owner or a warrant based on
probable cause.
5)Allows a law enforcement agency, without first obtaining a
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warrant or consent from the property owner over private
property, to use an UAS in the following circumstances:
a) In emergency situations if there is an imminent threat
to life or of great bodily harm, including, but not limited
to fires, hostage crises, "hot pursuit" situations if
reasonably necessary to prevent harm to law enforcement
officers or others; and search and rescue operations on
land or water;
b) To assess the necessity of first responders and process
scenes in situations relating to traffic accidents;
c) To document traffic collision and crime scenes;
d) To inspect state parks and wilderness areas for illegal
vegetation or fires regardless of permanent improvements or
temporary human habitation; and,
e) To determine the appropriate response to an imminent or
existing environmental emergency or disaster, including,
but not limited to, oils spills or chemical spills.
6)Allows a public agency, other than a law enforcement agency,
to use an UAS, or contract for the use of an UAS, to achieve
the core mission of the agency provided that the purpose is
unrelated to the gathering of criminal intelligence.
7)States that a public agency that is not primarily a law
enforcement agency, but that employs peace officers or
performs functions related to criminal investigations, may use
an UAS without obtaining a warrant to achieve the core mission
of the agency, provided that the purpose is unrelated to the
gathering of criminal intelligence, and that the images,
footage, or data are not used for any purpose other than that
for which it was collected.
8)Defines "criminal intelligence" as information compiled,
analyzed, or disseminated in an effort to anticipate, prevent,
monitor, or investigate criminal activity.
9)Requires reasonable notice to be provided by a public agency
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and a law enforcement agency prior to using an UAS, or
contracting for the use of an UAS, as specified below:
a) A public agency shall provide reasonable notice to the
public that, at a minimum, consists of a one-time
announcement regarding the agency's intent to deploy UAS
technology and a description of the technology's
capabilities to the public; and
b) A law enforcement agency shall provide reasonable notice
to the public or to the governing board, or the agency may
create a set of guidelines that will be made available to
the public, that at a minimum, consists of a one-time
announcement regarding the agency's intent to deploy
unmanned aircraft system technology, a description of the
technology's capabilities, and what it will and will not be
used for.
10)States that, except as permitted by the provisions in this
bill, images, footage, or data obtained by a public agency, or
any entity contracting with a public agency, over private
property and pursuant to this bill shall not be disseminated
to a law enforcement agency unless the law enforcement agency
has obtained consent from the property owner or a warrant for
the images, footage, or data based on probable cause, or the
law enforcement agency would not have been required to obtain
a warrant to collect the images, footage, or data itself as
specified.
11)Allows a public agency that is not primarily a law
enforcement agency, but that employs peace officers or
performs functions related to criminal investigations, to
disseminate images, footage, or data collected by the use of
an UAS if the dissemination is to others within that agency.
12)Prohibits disseminating the images, footage, or data to
entities outside the collecting public agency, unless one of
the following circumstances applies:
a) To another public agency if the images, footage, or data
are related to the core mission of both public agencies
involved in the sending or receiving of the images,
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footage, or data;
b) To an entity outside the collecting public agency if the
images, footage, or data are evidence in any claim filed or
any pending litigation; or
c) To a private entity if both of the following conditions
are satisfied:
i) The collecting public agency is not a law
enforcement agency; and,
ii) The images, footage, or data are related to the core
function of the collecting public agency.
13) Allows a public agency to make available to the public
images, footage, or data obtained by the public agency through
the use of an UAS if both of the following conditions are
satisfied:
a) The images, footage, or data do not depict or describe
any individual or group of individuals, or the activities
of any individual or group of individuals whose identity or
identities can be ascertained; and,
b) The disclosure of the images, footage, or data is
required to fulfill the public agency's statutory or
mandatory obligations.
14)Prohibits, except as permitted by the provisions of this
bill, public agencies from using images, footage, or data
obtained by a public agency through the use of an UAS for any
purpose other than that for which it was collected.
15)Requires images, footage, or data obtained through the use of
an UAS to be permanently destroyed within one year, except in
the following circumstances:
a) For training purpose, as specified.
b) For academic research or teaching purposes, as
specified.
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c) For purposes of monitoring material assets owned by the
public agency.
d) For environmental, public works, or land use management
or planning by the public agency.
e) The images, footage or data are evidence currently being
used, or anticipated to be used, in a criminal proceeding.
16)States, notwithstanding the above provision, a public agency
may retain beyond one year images, footage, or data in the
following circumstances:
a) If a warrant authorized the collection of the images,
footage, or data.
b) If the images, footage, or data are evidence in any
claim filed or any pending litigation or enforcement
proceeding.
17)Prohibits a person, entity, or public agency from equipping
or arming an UAS with a weapon or other device that may be
carried by or launched from an UAS and that may cause bodily
injury or death or damage to, or the destruction of, real or
personal property, unless authorized by federal law.
18)Provides that all UAS shall be operated so as to minimize the
collection of images, footage, or data of persons, places, or
things not specified with particularity in the warrant
authorizing the use of an unmanned aircraft system, or, if no
warrant was obtained, for purposes unrelated to the
justification for the operation.
19)States that none of the provisions in this bill are intended
to conflict with or supersede federal law, including rules and
regulations of the Federal Aviation Administration (FAA); and
authorizes a local legislative body to adopt more restrictive
policies on the acquisition or use of unmanned aircraft
systems.
20)Prohibits a person, entity, or public agency from equipping
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or arming an UAS with a weapon or other device that may be
carried by or launched from an UAS and that may cause bodily
injury or death or damage to, or the destruction of, real or
personal property.
21)Provides that surveillance restrictions on electronic devices
shall also apply to UAS.
22)States that none of the provisions above are intended to
conflict with or supersede federal law, including rules and
regulations of the Federal Aviation Administration (FAA).
23)Provides that notwithstanding any other provision, images,
footage or data obtained through the use of the unmanned
aircraft system or any related record, including but not
limited to, usage logs or logs that identify any person or
entity that subsequently obtains or requests records of that
system, are public records subject to disclosure.
24)Clarifies that nothing in this bill or any other law requires
the disclosure of images, footage, or data obtained through
the use of an UAS, or any related record that identify any
person or entity that subsequently obtains or requests records
of that system, to the extent that disclosure of the images,
footage, data, or records would endanger the safety of a
person involved in an investigation, or would endanger the
successful completion of the investigation.
EXISTING FEDERAL LAW: The Aviation Administration Modernization
and Reform Act of 2012 provides for the integration of civil
UAS, commonly known as drones, into the national airspace system
by September 30, 2015. The Act requires the Administrator of
the FAA to develop and implement operational and certification
requirements for the operation of public UAS in the national
airspace by December 31, 2015. (H.R. 658 2011-12, Section 332.)
EXISTING STATE LAW:
1)States that a search warrant is an order in writing, in the
name of the people, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and, in the
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case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
2)Permits a search warrant to be issued for any of the following
grounds:
a) When the property subject to search was stolen or
embezzled;
b) When property or things were used as the means to commit
a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child or possession of matter depicting sexual conduct of a
person under the age of 18 years has occurred or is
occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are
in the possession of any person with the intent to use them
as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
preventing their discovery;
h) When the property or things to be seized include an item
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or any evidence that tends to show a violation of a
specified section of the Labor Code, or tends to show that
a particular person has violated that section;
i) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault as
specified;
j) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of,
specified persons;
aa) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms, as specified, if a
prohibited firearm is possessed, owned, in the custody of,
or controlled by a person against whom a specified
protective order has been issued, the person has been
lawfully served with that order, and the person has failed
to relinquish the firearm as required by law;
bb) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code has been committed or is being committed,
tends to show that a particular person has committed a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
is committing a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code, or will assist in locating an individual
who has committed or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code;
cc) When a sample of the blood of a person constitutes
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evidence that tends to show a violation of specified
provisions in the Vehicle Code relating to driving under
the influence offenses and the person from whom the sample
is being sought has refused an officer's request to submit
to, or has failed to complete, a blood test as specified;
and,
dd) Beginning January 1, 2016, the property or things to be
seized are firearms or ammunition or both that are owned
by, in the possession of, or in the custody or control of a
person who is the subject of a gun violence restraining
order, as specified. (Pen. Code, § 1524, subd. (a).)
3)Prohibits wiretapping or eavesdropping on confidential
communications, which excludes communications made in public
or in any circumstance that the parties may reasonably expect
that the communication may be overheard or recorded. (Pen.
Code, § 632, subd. (c).)
4)Provides that nothing in the sections prohibiting
eavesdropping or wiretapping prohibits specified law
enforcement officers or their assistants or deputies acting
within the scope of his or her authority, from overhearing or
recording any communication that they could lawfully overhear
or record. (Pen. Code, § 633.)
5)California Public Records Act generally provides that access
to information concerning the conduct of the people's business
is a fundamental and necessary right of every person in this
state. (Gov. Code, § 6250 et. seq.)
6)Provides that public records are open to inspection at all
times during the office hours of the state or local agency and
every person has a right to inspect any public record, except
as provided. Any reasonably segregable portion of a record
shall be available for inspection by any person requesting the
record after deletion of the portions that are exempted by
law. (Gov. Code, § 6253)
FISCAL EFFECT: Unknown
COMMENTS:
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1)Author's Statement: According to the author, "We live in a
culture that is extremely sensitive to the idea of preventing
unnecessary government intrusion into any facet of our lives.
Drones, as with other technologies, can be of great asset to
the state and improve public safety. For example, the
California Military Department provided firefighters with
aerial surveillance while battling the massive Rim Fire in
2013 along the foothills of the Sierra Nevada. This aerial
surveillance allowed firefighters to tract the fire in real
time, allowed commanders to move firefighters out of harm's
way and reposition firefighters as the wind shifted the fire
across the mountainside. However, privacy concerns are an
issue that must be dealt with effectively if the public is to
support the use of drones by their local law enforcement
agencies.
"In 2013, my local Sheriff attempted to purchase a drone and
hide it from the public. When the public found out, the
frustration, concern and backlash forced my sheriff to abandon
his pursuit of the drone. While he eventually did succeed in
purchasing a drone, this time he is working on an operations
manual to inform the public on the guidelines his department
will follow when deploying a drone. Though still being
drafted, it will be made public.
"AB 56 will establish a set of parameters for the use of
drones in public and private spaces. It restricts the sharing
of data between agencies (public and law enforcement) to
prevent the roundabout tracking of individuals. Additionally,
this bill will create accountability within the law
enforcement community by requiring that they provide notice to
their governing agency or public on what they intend to use
(and not to use) drones for. This bill recognizes that drones
can be a beneficial tool, but at the same time they can be
abused without the proper oversight or guidance on their use."
2)Fourth Amendment Considerations: Technology and Warrantless
Searches: Both the United States and the California
constitutions guarantee the right of all persons to be secure
from unreasonable searches and seizures. (U.S. Const., amend.
IV; Cal. Const., art. 1, sec. 13.) This protection applies to
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all unreasonable government intrusions into legitimate
expectations of privacy. (United States v. Chadwick (1977)
433 U.S. 1, 7, overruled on other grounds by California v.
Acevedo (1991) 500 U.S. 565.) In general, a search is not
valid unless it is conducted pursuant to a warrant. The mere
reasonableness of a search, assessed in light of the
surrounding circumstances, is not a substitute for the warrant
required by the Constitution. (Arkansas v. Sanders (1979) 442
U.S. 753, 758, overruled on other grounds by California v.
Acevedo, supra.) There are exceptions to the warrant
requirement, but the burden of establishing an exception is on
the party seeking one. (Arkansas v. Sanders (1979) 442 U.S.
753, 760, overruled on other grounds by California v. Acevedo,
supra.)
Courts have been confronted with questions of how evolving
technology intersects with the Fourth Amendment. In Kyllo v.
United States (2001) 533 U.S. 27, the U.S. Supreme Court
considered whether the use of a thermal imager, which detects
infrared radiation invisible to the naked eye, to determine
whether the defendant was growing marijuana in his apartment,
was a search in violation of the Fourth Amendment. The Court
held that "[w]here, as here, the Government uses a device that
is not in general public use, to explore details of the home
that would previously have been unknowable without physical
intrusion, the surveillance is a 'search' and is presumptively
unreasonable without a warrant." (Id. at p. 40.)
In United States v. Jones (2012) 132 S. Ct. 945, the Supreme
Court was presented with a Fourth Amendment challenge to the
use of a Global Positioning System (GPS) tracking device by
law enforcement officers to monitor the movements of a
suspected drug trafficker's vehicle over a period of 28 days.
The Court held that the government's installation of the GPS
device on the defendant's private property for the purpose of
conducting surveillance constituted a "search" under the
Fourth Amendment. GPS technology is intrusive because it
"generates a precise, comprehensive, record of a person's
public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual
associations. The Government can store such records and
efficiently mine them for information years into the future."
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(Id. at pp. 955-956.)
Because technology is always evolving it is important to
consider how new technology should be regulated in order to
avoid governmental abuse. The Court's decisions in prior cases
provide some guidance on how new technology may be evaluated
within the framework of the Fourth Amendment's protections
against unreasonable searches and seizures. As illustrated in
Kyllo and Jones, even in a public space, the use of advanced
technology to conduct surveillance without a warrant may be
restricted by the Fourth Amendment.
3)Reasonable Notice Requirement: This bill requires a public
agency to provide reasonable notice to the public before
deploying UAS technology. The bill specifies that at minimum,
reasonable notice requires the agency to provide a one-time
announcement regarding the agency's intent to deploy UAS
technology and a description of the technology's capabilities
to the public. A law enforcement agency must provide
reasonable notice to the public or to the governing board.
Alternatively, the law enforcement agency may create a set of
guidelines that will be made available to the public. The
reasonable notice by a law enforcement agency must, at a
minimum, consist of a one-time announcement regarding the
agency's intent to deploy unmanned aircraft system technology,
a description of the technology's capabilities, and what it
will and will not be used for.
The proposed use of UAS by law enforcement has been a divisive
issue for some local jurisdictions. Public outcry against the
unrestrained use of UAS by the government has led some
counties to reconsider their use. In 2013, the sheriff of
Alameda County attempted to request funding for UAS by the
County Board of Supervisors. The sheriff pulled the item from
consideration after public criticism. At the end of 2014, it
was revealed that the Alameda County Sheriff went ahead and
purchased the UAS using the department's own funds. Critics,
including the American Civil Liberties Union, described the
issue as "'a troubling example of law enforcement trying to
acquire invasive and extremely unpopular surveillance
technology in secret."' (Lee, Alameda County Sheriff Reveals
that He's Bought 2 Drones, S.F. Gate (Dec. 3, 2014).)
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San Jose, after purchasing an UAS, was also met with a hostile
response for not informing the public of the device either
before or after its purchase. San Jose police issued a
statement acknowledging that the department 'should have done
a better job of communicating the purpose and acquisition of
the (drone) to [the] community. The community should have the
opportunity to provide feedback, ask questions, and express
their concerns before we move forward with this project.'
(Lee, Alameda County Sheriff Reveals that He's Bought 2
Drones, S.F. Gate (Dec. 3, 2014).)
This bill requires reasonable notice to be provided to the
public or the governing board, specifically requiring agencies
to provide information on the technological capabilities of
the UAS and the purpose of using the UAS. The bill does
specifically require input from the public, however, providing
notice will provide the public a chance evaluate the proposal.
It may also trigger the public to reach out to members of
their local legislative body to express concerns over the use
of UAS. The local legislative body is expressly authorized
under the provisions of this bill to adopt more restrictive
policies on the acquisition or use of unmanned aircraft
systems.
4)Weaponized UAS: UAS devices have the capability of being
armed with weapons, lethal and nonlethal. The United States
has used armed UAS to target militants in military operations
abroad. (Christopher Drew, Drones Are Weapons of Choice in
Fighting Qaeda, New York Times (Mar. 17, 2009).)
Domestically, there has been a push by some law enforcement
agencies to arm UAS to fire rubber bullets and tear gas. (See
Drones over US to get weaponized - so far, non-lethally,
RT.com (May 24, 2012).) This bill would prohibit the
equipping or arming of an UAS with a weapon or other
launchable device that may cause injury, death, or property
damage.
5)Argument in Support: None submitted.
6)Argument in Opposition: According to the American Civil
Liberties Union of California, "As amended, AB 56 would grant
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unprecedented and unconstitutional surveillance powers to the
state. For example, by allowing unlimited use of a drone over
all public lands, highways, and spaces open to the public, law
enforcement would be able to track anyone, including by
following them around any time they are in public, which would
appear to include all commercial areas open to the general
public, without any judicial oversight or cause to suspect
wrongdoing. Additionally, AB 56 would authorize warrantless
surveillance of activities protected by the First Amendment,
such as protest rallies, which has led to documented abuses by
law enforcement. Law enforcement should not be authorized to
perform such wide-ranging surveillance without a warrant
supported by probable cause.
"By creating a categorical warrant exception for any law
enforcement use of drones over public lands, AB 56 implies
there is no expectation of privacy from being surveilled by a
drone so long as the drone is over a public area - even for
people in their bedrooms. As amended, the bill appears to
allow law enforcement officers to look into upper story
windows without a warrant being provided that the drone is
over a public street. The right to privacy in personal areas
should not be lost simply because the drone is over public
land. This kind of invasive spying authorized by AB 56 is not
consistent with reasonable expectations of privacy and appears
to be in violations of both article 1 § 1 of the California
Constitution and the Fourth Amendment to the US Constitution.
. . .
"We also note that the public-notice provision of Section 14351
is so negligible as to be irrelevant. Drones present a
fundamentally new and intrusive threat to privacy that should
be subject to initial controls and ongoing oversight by
elected officials following a full assessment of the privacy
impacts and informed public input before money is sought for
their purchase of their use is authorized. The ACLU of
California conducted a comprehensive assessment of
surveillance technology and issued a report outlining
essential processes and minimum standards for local adoption
of drones and other intrusive devices. (Making Smart
Decisions About Surveillance: A Guide for Communities.) AB
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56 falls far short of the minimum requirements and approvals
that should be in place before police are permitted to use
drones. In addition, the bill omits any requirement for
public notice and input prior to the use of drones that are
borrowed from another police department or other agency."
7)Related Legislation: SB 262 (Galgiani) would authorize a law
enforcement agency to use UAS if the use of the UAS complies
with protections against unreasonable searches guaranteed by
the United States Constitution and the California
Constitution, federal law applicable to the use of an unmanned
aircraft system, a law enforcement agency, state law
applicable to a law enforcement agency's use of surveillance
technology that can be attached to an UAS. SB 262 is pending
hearing by the Senate Committee on Public Safety.
8)Prior Legislation:
a) AB 1327 (Gorell), of the 2013 to 2014 Legislative
Session, would have regulated the use of UAS by public
agencies and the dissemination and use of any images, data
and footage obtained by those systems. AB 1327 was vetoed.
b) SB 15 (Padilla), of the 2013-2014 Legislative Session,
would have required law enforcement to get a warrant for
drone use if it implicated a legitimate expectation of
privacy. Would have limited drone use by public agencies
to within the scope of the agencies authority and prevented
public agencies from providing drone information to law
enforcement without a warrant. Would have directed public
agencies to destroy drone information after one year except
as specified. SB 15 was held in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
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American Civil Liberties Union of California
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744