BILL ANALYSIS Ó AB 56 Page 1 Date of Hearing: April 30, 2015 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Mike Gatto, Chair AB 56 (Quirk) - As Amended April 22, 2015 SUBJECT: Unmanned aircraft systems SUMMARY: Regulates the use of an unmanned aircraft system (UAS) by state and local law enforcement and other public agencies, including a requirement that a law enforcement agency obtain approval from the legislative body governing the agency and a restriction on the use of UAS over private property, unless a search warrant or consent is present. Specifically, this bill: 1)Requires a law enforcement agency that plans to use a UAS over public lands, highways and spaces open to the public to comply with all of the following: a) Protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution; b) Federal law applicable to the use of a UAS, including Federal Aviation Administration (FAA) regulations; c) State law applicable to any agency's use of surveillance technology that can be attached to a UAS; AB 56 Page 2 d) The law enforcement agency shall obtain prior approval from the legislative body having management and control of the agency; e) If the use of a UAS may involve the systematic collection of images from an adjacent county or city, then the law enforcement agency shall obtain approval from the local legislative body of that city or county; and, f) The law enforcement agency must develop and share with the public its UAS policy and train agency officers and employees on the policy, prior to the use of the UAS. 2)Requires a local legislative body that considers approving law enforcement agency use of UASs to provide an opportunity for public comment at a regularly scheduled public meeting prior to granting approval and requires the approval to specify the circumstances under which the UAS may be used and the time limits applicable to each type of use. 3)Requires a law enforcement agency that plans to use UAS to surveil private property to get either a search warrant or the consent of the person or entity with the legal authority to grant access to the specific privacy property to be subjected to surveillance. 4)Makes an exception to the above requirements in emergencies and other circumstances as follows: a) If there is an imminent threat to life or of great bodily harm, such as fires, hostage crises, "hot pursuit," and search and rescue operations; b) To assess or document traffic accidents and crime scenes; c) To inspect state parks and wilderness areas for illegal vegetation or fires regardless of permanent improvements or temporary human habitation; and, AB 56 Page 3 d) To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oil spills or chemical spills. 5)Requires a non-law enforcement public agency ("public agency") that plans to use UAS to comply with all of the following: a) The agency may only use UAS to achieve the core mission of the agency, not for gathering of criminal intelligence, and the images, footage, and data are not used for any other purpose; and, b) The agency must make a one-time public announcement of the agency's intent to deploy UAS and include a description of the UAS's capabilities. 6)Permits a public agency to share images, footage, or data gathered with UAS as follows: a) Within the public agency that collected the images, footage or data; b) With another public agency if the information is related to the core mission of both agencies;. or, c) With a law enforcement agency if the law enforcement agency has: i) A search warrant, if one would have been required if the law enforcement agency were gathering the images directly; or, ii) If the data is of private property, consent of the person or entity with legal authority to grant access to the property or a search warrant for the images, footage, or data. d) With an outside entity if the images, footage, or data AB 56 Page 4 are evidence in pending litigation; e) With the public if: i) The images, footage, or data do not depict or describe any individual or group of individuals, or the activities of any individual or group of individuals whose identity or identities could be ascertained; and, ii) The disclosure of the images, footage, or data is required to fulfill the public agency's statutory or mandatory obligations. 7)Requires destruction of images, footage, or data gathered via UAS to be permanently destroyed within one year, with exceptions for the following: a) Training, academic research and teaching purposes; b) Monitoring material assets owned by the public agency; c) Environmental, public works, or land use management or planning; d) In cases where a search warrant authorized the collection of the images, footage, or data; and, e) In cases where the images, footage, or data are evidence in pending litigation, an internal disciplinary proceeding, or an enforcement proceeding. 8)Prohibits equipping or arming a UAS with a weapon or other device that may be carried by or launched or directed from a UAS and that may cause incapacitation, bodily injury or death, or damage to or the destruction of real or personal property, unless authorized by federal law. 9)Requires a UAS to be operated to minimize the collection of images, footage, or data of persons, places, or things not AB 56 Page 5 specified with particularity in the warrant authorizing the use of a UAS, or, if no warrant was obtained, for purposes unrelated to the justification for the operation. 10)States that none of the provisions in this bill are intended to conflict with or supersede federal law, including rules and regulations of the FAA. 11)Authorizes a local legislative body to adopt more restrictive policies on the acquisition or use of UAS. 12)Defines "criminal intelligence" as information compiled, analyzed, or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity. 13)Defines "law enforcement agency" to include the Attorney General, district attorneys, and any agency authorized by statute to investigate or prosecute law violators. 14)Defines "public agency" to include state and local agencies, and distinguishes them from law enforcement agencies. = 15)Defines "UAS" as an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system. EXISTING LAW: 1)Provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." (U.S. Const. amend. IV,) AB 56 Page 6 2)Provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." (CA Const. art. I, Section 13.) 3)Requires, under the Federal Aviation Administration Modernization and Reform Act of 2012, the FAA to integrate UAS into the national airspace system by September 30, 2015, and to develop and implement certification requirements for the operation of UAS in the national airspace system by December 31, 2015. (Public Law Number 112-095) 4)Makes it a crime for a person to look through a hole or opening or otherwise view, by means of any instrumentality, the interior of bedrooms, bathrooms, and various other areas in which an occupant has a reasonable expectation of privacy, with the intent to invade the privacy of one or more persons inside. (PC 647(j)(1).) 5)Requires law enforcement, in certain instances, to obtain a warrant to search a person or a person's property and states that a search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate. (PC Section 1523) 6)Defines physical invasion of privacy in terms of trespassing in order to capture an image, sound recording or other impression in certain circumstances. It also defines constructive invasion of privacy as attempting to capture such an impression under circumstances in which the plaintiff had a AB 56 Page 7 reasonable expectation of privacy. (California Civil Code Section 1708.8) FISCAL EFFECT: Unknown COMMENTS: 1)Purpose of this bill . This bill is intended to establish a comprehensive set of parameters for the use of UAS, commonly known as "drones," by law enforcement and public agencies over public and private spaces in California. This measure is author-sponsored. 2)Author's statement . According to the author, "We live in a culture that is extremely sensitive to the idea of preventing unnecessary government intrusion into any facet of our lives. Drones, as with other technologies, can be a great asset to the state and improve public safety. For example, the California Military Department provided firefighters with aerial surveillance while battling the massive Rim Fire in 2013 along the foothills of the Sierra Nevada. This aerial surveillance allowed firefighters to track the fire in real time, allowed commanders to move firefighters out of harm's way and reposition firefighters as the wind shifted the fire across the mountainside. However, privacy concerns are an issue that must be dealt with effectively if the public is to support the use of drones by their local law enforcement agencies." "In 2013, my local Sheriff attempted to purchase a drone and hide it from the public. When the public found out, the frustration, concern and backlash forced my sheriff to abandon his pursuit of the drone. While he eventually did succeed in purchasing a drone, this time he is working on an operations manual to inform the public on the guidelines his department will follow when deploying a drone. Though still being AB 56 Page 8 drafted, it will be made public. "AB 56 will establish a set of parameters for the use of drones in public and private spaces. It restricts the sharing of data between agencies (public and law enforcement) to prevent the roundabout tracking of individuals. Additionally, this bill will create accountability within the law enforcement community by requiring that they provide notice to their governing agency or public on what they intend to use (and not to use) drones for. This bill recognizes that drones can be a beneficial tool, but at the same time they can be abused without the proper oversight or guidance on their use." 3)What is a UAS ? The FAA defines a UAS as an unmanned aircraft and all of the associated support equipment, control station, data links, telemetry, communications and navigation equipment necessary to operate the unmanned aircraft. A UAS is flown either by a pilot via a ground control system or autonomously through use of an on-board computer, communication link and any additional equipment used to operate the UAS. 4)FAA regulation of UAS . Current FAA rules prohibit UAS use in FAA airspace but allow commercial users to apply for an exemption from the FAA rules along with an FAA Certificate of Authorization (COA) permitting commercial uses, such as real estate marketing, wedding photography, television, film, mapping, and land surveys. Federal, state and local government agencies, law enforcement, and public colleges and universities can also receive a COA from the FAA authorizing specific uses of UAS for specific time periods. On February 15, 2015, the FAA published proposed a new framework of regulations for the use of UAS in national airspace, i.e., AB 56 Page 9 above 400 feet, which would allow the routine use of certain small UAS (under 55 pounds). The proposed rules would limit flights to non-recreational, daylight, visual-line-of-sight operations. The rules also address height restrictions, operator certification, aircraft registration and marking, and operational limits. The proposed rules discuss the possibility of a more flexible regulatory framework for "micro" UAS (under 4.4 pounds). This bill deals with regulation of UAS below FAA airspace, i.e., below 400 feet. 5)The potential and the peril of UAS . Despite the media and public attention on the use of UAS in the context of weapons deployment and terrorism, UAS have myriad practical applications. For example, UAS can be used to survey damage, locate victims, and assess threats in natural and manmade disasters without risking the lives of rescue workers. UAS can be used in agriculture to observe and measure crops while conserving resources and avoiding the use of heavy equipment. UAS can also give the media safe, economical, and environmentally-friendly access to aerial views for news broadcasts when compared to the current use of helicopters and other manned aircraft. Some law enforcement agencies have acquired UAS for the intended use in emergency situations such as hostage-taking, school shootings, and kidnapping-related crimes. However, the need for a comprehensive set of laws governing the use of UAS is undisputed in light of the profound effect an UAS could have on personal privacy. UAS equipped with cameras, microphones, Internet or wireless connections, and remote controls have enormous potential to invade personal space if used, for example, to hover at low heights over fenced backyards, outside the windows of homes, or over the heads of individuals standing, walking, or sitting alone or in groups in public or even private spaces. Among other things, UAS could be used to capture close up images faces, body parts, or the personal property a person carries with them, AB 56 Page 10 and could be used to listen to private conversations carried on outdoors between people moving in public and private spaces. 6)Regulating law enforcement's use of UAS . This bill was amended prior to this hearing to allow local law enforcement agencies to use UAS in public spaces only if the law enforcement agency obtains approval from the local governing body, i.e. city council or county board of supervisors. Under this bill, a state law enforcement agency, e.g., the Attorney General, would obtain approval from the Legislature before implementing a UAS program. For surveillance of private property, this bill requires a law enforcement agency to get either a search warrant or the consent of the person or entity with the legal authority to grant access to the property. The bill makes exceptions from these rules for emergencies. While the prior version of this bill would have only required law enforcement to provide a one-time public notice before using UAS, the current version of the bill establishes stronger protections for personal privacy and more public accountability by requiring a governing board to approve law enforcement's use of UAS. The approval must happen at a regularly scheduled meeting where public comments can be made, and the approval must specify both the circumstances and the time limits on UAS use for each circumstance. 7)Regulating public agency use of UAS . This bill permits state and local agencies that are not law enforcement agencies to use UAS as long as the use comports with the core mission of the agency and the data gathered is not used for other purposes. Under this bill, public agencies must provide a one-time public announcement on the planned use and provide details on how the UAS technology works. AB 56 Page 11 8)Restricting UAS data sharing . This bill restricts public agencies from sharing data collected using UAS, except in certain circumstances, and requires agencies to destroy UAS data after one year, with certain exceptions. Law enforcement can get access to data collected by a non-law enforcement agency if law enforcement would not have needed a search warrant to collect the data directly. If the data to be shared is about private property, then this bill requires law enforcement to present a search warrant or get consent from the person or entity with legal authority to grant access to the private property, which may be an owner or a tenant in the case of leased property. This bill allows public agencies to share UAS data with the public if it is required by law and as long as the images, footage, or data do not depict or describe any individual or group of individuals - or the activities of any individual or group of individuals - whose identity or identities could be ascertained from the images. 9)Prohibition on weaponized UAS . UAS have the capability of being armed with weapons, lethal and nonlethal. The U.S. has used armed UAS to target militants in military operations abroad. ("Drones Are Weapons of Choice in Fighting Qaeda," New York Times, Mar. 17, 2009) Domestically, there has been a push by some law enforcement agencies to arm drones to fire rubber bullets and tear gas. ("Drones over US to get weaponized - so far, non-lethally," RT.com, May 24, 2012) This bill would ban law enforcement agencies from arming UAS with weapons, launchable devices, or other capabilities that may cause incapacitation, injury, death, or property damage. 10)The Fourth Amendment and new technologies : The U.S. Constitution and the California Constitution guarantee the right of all persons to be secure from unreasonable searches and seizures. This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. AB 56 Page 12 (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 AB 56 Page 13 "generates a precise, comprehensive, record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future." (Id. at pp. 955-956.) As technology evolves, the Legislature must consider how new technologies should be used in a way that carefully balances the need for public safety against the right to personal privacy. The Court's decisions in Kyllo and Jones provide some clues as to how courts may rule on law enforcement's use of drones. Eventually, the courts may rule that the use of drones to conduct surveillance without a warrant is restricted by the Fourth Amendment. But until a case rises to the 9th Circuit or the U.S. Supreme Court, any restrictions on the use of UAS by law enforcement and other public agencies are left up to the Legislature and local governments. 11)Constitutional law on the use of aircraft over private property . In considering the specific question of when a person has a reasonable expectation of privacy in the airspace around his or her home, courts have consistently held that while the Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures, it does not guarantee privacy. For example, the U.S. Supreme Court in 1986 ruled that police did not violate the Fourth Amendment when they rented a private plane and viewed the defendant's yard (where he was growing marijuana) from an altitude of 1,000 feet, despite the fact that the yard was surrounded by a 6-foot outer fence and a 10-foot inner fence. (Cal. v. Ciraolo (1986) 476 U.S. 207, 209.) The Court observed that the defendant's expectation of privacy in his backyard was unreasonable. That the backyard and its crop were within the "curtilage" of AB 56 Page 14 respondent's home did not itself bar all police observation. The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observation from a public vantage point where he has a right to be and which renders the activities clearly visible. The police observations here took place within public navigable airspace, in a physically nonintrusive manner. (Id. at p. 215.) 12)California local government action on UAS . Several local governments in California are considering allowing law enforcement to use UAS in their jurisdictions. On April 8, 2015, the San Jose Neighborhoods Commission endorsed a 12-month pilot project allowing the San Jose police department to test UAS. The San Jose City Council is expected to approve the pilot project, which would begin in 2017. ("Controversial Police Drone Inches Closer To Flight In San Jose," San Jose Mercury News, April 9, 2015.) In 2014, the Los Angeles (L.A.) Police Department acquired two UAS from the Seattle Police Department. Following public criticism, the L.A. City Council called on the L.A. Police Commission to develop a policy on the use of UAS before LAPD deploys them. The city's policy is still in development. ("LAPD's 2 Drones Will Remain Grounded During Policy Review, Police Commission Says Amid Protest," KTLA5, September, 14, 2014; and "LA City Council Instructs LAPD, Commission, To Create Drone-Use Criteria," ABC7, October 28, 2014.) In 2013, the Alameda County Sheriff's Department purchased two UAS using the Department's own funds and without public notice or approval from the Alameda County Board of Supervisors. ("Alameda County Sheriff Reveals that He's Bought 2 Drones," S.F. Gate (Dec. 3, 2014). AB 56 Page 15 Generally speaking, local communities throughout California have become very involved in debates over the use of UAS, which arguably should help shape UAS uses and restrictions to suit a local community's particular needs and concerns. Some city councils and county boards of supervisors may ultimately find specific uses of UAS appropriate and acceptable. In 2014, the Legislature passed AB 1327 (Gorell), which would have required all law enforcement agencies to obtain a search warrant before any use of UAS, except for certain emergencies. However, AB 1327 was vetoed by the Governor on the grounds that the exceptions for emergencies were too narrowly drafted. Given the deliberative process local governments are undertaking with regard to the use of UAS, this bill may be an appropriate approach to the regulation of UAS. 13)The Governor's veto of AB 1327 (Gorell) . As noted above, Governor Jerry Brown vetoed AB 1327 (Gorell) of 2014, which would have required law enforcement agencies to obtain a warrant, except in emergencies such as a hostage situation or a fire, before deploying UAS. In his veto message, Governor Brown stated: "This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances. "There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution." AB 56 Page 16 14)Arguments in opposition . The California State Sheriff's Association states in opposition that "we must oppose the provisions that require prior approval from a local governing body before the use of [UAS]. First, we believe that such prior approval would hinder the deployment of [UAS] during emergency situations such as search and rescue operations and wildfires. Moreover, the provisions requiring permission from adjacent counties or cities would likewise hinder responses when [UAS] are used to provide mutual aid and assistance to other counties. Finally, we believe this would set an unwarranted and inappropriate precedent by limiting the authority of a duly elected sheriff to manage the functions of his or her own agency." The American Civil Liberties Union of California stated in opposition to a prior version of the bill which would have only required a one-time notice prior to law enforcement UAS use, "AB 56 would grant unprecedented and unconstitutional surveillance powers to the state. For example, by allowing unlimited use of a drone over all public lands, highways, and spaces open to the public, law enforcement would be able to track anyone, including by following them around any time they are in public, which would appear to include all commercial areas open to the general public, without any judicial oversight or cause to suspect wrongdoing. Additionally, AB 56 would authorize warrantless surveillance of activities protected by the First Amendment, such as protest rallies, which has led to documented abuses by law enforcement. Law enforcement should not be authorized to perform such wide-ranging surveillance without a warrant supported by probable cause." 15)Related legislation . AB 14 (Waldron) creates the Unmanned Aircraft Systems Task Force, comprised of 10 members; requires the task force to research, develop, and formulate a AB 56 Page 17 comprehensive state policy for UAS; and requires the task force to submit a policy draft and suggested legislation pertaining to UAS to the Governor, the Governor's Office of Business and Economic Development, and the Legislature on an ongoing basis or before January 1, 2018. AB 14 failed passage in the Assembly Transportation Committee on a 5-9 vote. SB 142 (Jackson) extends liability for wrongful occupation of real property and damages to a person who without permission operates an UAS below the navigable airspace overlaying the real property. SB 142 is currently pending on the Senate Floor. SB 170 (Gaines) creates a felony crime for the use of an UAS to deliver contraband into a prison or county jail and creates a misdemeanor crime for the use of UAS over a prison or capture images of a prison. SB 170 is currently pending in the Senate Appropriations Committee, where it will be heard on May 4, 2015. SB 262 (Galgiani) is similar in part to this bill, because it authorizes a law enforcement agency to use an UAS if obtains approval from its governing body. For surveillance of private property, SB 262 requires either a warrant or permission from the person or entity with the legal authority to grant access to the property, but makes exceptions to these rules in emergencies. SB 262 passed the Senate Public Safety Committee April 14, 2015 on a 5-1 vote, and is currently pending in the Senate Judiciary Committee, where it will be heard on May 5, 2015. AB 56 Page 18 16)Prior legislation . AB 1327 (Gorell) of 2014 would have regulated the use of UAS by public agencies and the dissemination and use of any images, data and footage obtained by those systems. AB 1327 was vetoed by the Governor. AB 1326 (Gorell) would have provided tax exemptions relative to the construction of new manufacturing plants and for the purchase of machinery used to manufacture UAS. AB 1326 failed passage in the Assembly Appropriations Committee. AB 2306 (Chau), Chapter 858, Statutes of 2014, expanded a person's potential liability for constructive invasion of privacy, by removing the limitation that the person use a visual or auditory enhancing device, and instead made the person liable when using any device to engage in the specified unlawful activity. AJR 6 (Fox), Resolution Chapter 78, Statutes of 2013, requested the FAA to consider California as one of the six planned test sites for UAS and integration of those systems into the next generation air transportation system. SB 15 (Padilla) of 2013 would have imposed a search warrant requirement on law enforcement agency use of a UAS in certain circumstances, would have applied existing civil and criminal law to prohibited activities with devices or instrumentalities affixed to, or contained within a UAS, and would have prohibited equipping a UAS with a weapon, and would have prohibited using an UAS to invade a person's privacy. SB 15 failed passage in the Assembly Public Safety Committee. 17)Double-referral . This bill was double-referred to the AB 56 Page 19 Assembly Public Safety Committee, where it was heard on April 14, 2015, and passed on a 6-0 vote. REGISTERED SUPPORT / OPPOSITION: Support None on file. Opposition California State Sheriffs' Association American Civil Liberties Union (ACLU) (4/8/2015 version) Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200 AB 56 Page 20