BILL ANALYSIS Ó AB 1820 Page 1 Date of Hearing: March 15, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1820 (Quirk) - As Amended March 8, 2016 SUMMARY: SUMMARY: Regulates the use of unmanned aircraft systems (UAS) by law enforcement 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 law enforcement agency from using an UAS, obtaining a UAS from another public agency by contract, loan or other arrangement, or using information obtained from an UAS used by another public agency, except as provided in the provisions of this bill. 3)Specifies that the provisions of this bill apply to all law enforcement agencies and private entities when contracting with or acting as the agent of a law enforcement agency for the use of an UAS. 4)Allows a law enforcement agency to use UAS system, or use information obtained from a UAS system used by another public AB 1820 Page 2 agency, only if the law enforcement agency complies with the regulations of this bill and all other applicable federal, state, and local laws. 5)Requires a search warrant if the use of a UAS by a local law enforcement agency involves the collection of images or data from another city or county, unless an exigent circumstance exists. 6)Requires a law enforcement agency to develop and make available to the public the policy on its use of the UAS, and requires training of the law enforcement agency's officers and employees on the policy, if they elect to use a UAS. 7)Requires a law enforcement agency to use the unmanned aircraft system consistent with the policy developed regarding UAS. 8)States that a law enforcement agency shall present the proposed UAS policy at their regularly scheduled and noticed public meeting of its governing body with an opportunity for public comment, before finalizing the policy. 9)Specifies that a law enforcement agency's UAS policy must include the following: a) The circumstances under which an unmanned aircraft system may or may not be used; b) The rules and processes required before using an unmanned aircraft system; c) The individuals who may access or use an unmanned aircraft system or the information collected by an unmanned aircraft system and the circumstances under which those individuals may do so; d) The safeguards to protect against unauthorized use or access; e) The training required for any individual authorized to use or access information collected by an unmanned aircraft system; AB 1820 Page 3 f) The guidelines for sharing images, footage, or data with other law enforcement agencies and public agencies; g) The manner in which information obtained from another public agency's use of an unmanned aircraft system will be used; and h) Mechanisms to ensure that the policy is adhered to. 10)Prohibits a law enforcement agency from using a UAS, or information obtained from an UAS used by another public agency, to surveil private property unless the law enforcement has obtained a search warrant or express permission of the person or entity with legal authority to authorize a search of the property. 11)Allows a law enforcement agency, without first obtaining a warrant or consent from the property owner over private property, to use an UAS if an exigent circumstance exists. 12)Specifies that exigent circumstances include, but are not limited to, the following: 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 determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills. 13)Requires images, footage, or data obtained through the use of an UAS shall be permanently destroyed with one year, except in the following circumstances the agency may retain the data: a) For training purposes of the law enforcement agency's employees in matters related to the mission of the law enforcement agency; AB 1820 Page 4 b) For academic research or teaching purposes; c) If a search warrant authorized collection of the images, footage, or data; and d) If the images, footage, or data are evidence in any claim filed or any pending litigation, internal disciplinary proceeding, enforcement proceeding, or criminal investigation. 14)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. 15)Specifies that law enforcement agencies using unmanned aircraft systems shall operate them 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. 16)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) 17)Authorizes a local legislative body to adopt more restrictive policies on the acquisition or use of unmanned aircraft systems by a law enforcement agency. 18)States that except for provisions of this bill, that surveillance restrictions on electronic devices shall also apply to UAS. 19)Defines "surveil" as "the purposeful observation of a person or private property with the intent of gathering criminal intelligence." 20)Defines "criminal intelligence" as "information compiled, AB 1820 Page 5 analyzed, or disseminated in an effort to anticipate, prevent, monitor, or investigate criminal activity." 21)Defines "law enforcement agency" as "the Attorney General, each district attorney, and each agency of the state or subdivision of the state authorized by statute to investigate or prosecute law violators and that employs peace officers." 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)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 AB 1820 Page 6 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 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, AB 1820 Page 7 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 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).) 4)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).) 5)Provides that nothing in the sections prohibiting eavesdropping or wiretapping prohibits specified law AB 1820 Page 8 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.) 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) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Technology has played a critical role in helping law enforcement groups strategize new ways to fight crime. A UAS, or drone, can be a great asset to the state and can play an important role in improving 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. "Drones may also be able to observe areas that are difficult or dangerous for officers to enter, they can help assess dangerous situations (such as a hostage situation or bomb threat) and assist in strategizing responses to these incidents. "Though drone technology is growing quickly, high-tech AB 1820 Page 9 capabilities (such as detailed imagine from high altitudes, ability to travel large distances) are still under development or cost prohibitive for law enforcement agencies. However, without parameters to guide the use of these devices, the possibility for abuse exists. "AB 1820 will establish a set of parameters for the use of drones by law enforcement agencies. Specifically, the bill requires law enforcement agencies to develop a set of policies to govern the use of drones that will be presented as a regularly scheduled meeting of the governing body to allow for public comment. "Additionally, AB 1820 indicates instances in which a warrant is needed for the use of a drone and how long the images captured by a drone must be retained before they can be destroyed." 2)Background: According to the Federal Aviation Administration (FAA), an unmanned aircraft system (UAS) is 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. An UAS is inherently different from manned aircrafts, both in size and flying capability. Some unmanned aircraft weigh 1,900 pounds and can remain aloft for 30 hours or more because there is no need for them to land to change pilots. Some are six inches long. Others can perform dangerous missions without risking loss of life. However, most UAS currently available for purchase by law enforcement lack the capability to do more than simply hover for small periods of time before needing to recharge. 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 AB 1820 Page 10 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. California lacks any law or regulation governing the acquisition and use of UAS by law enforcement agencies. Several jurisdictions have already purchased drones with very little, if any, public announcement or discussion. 3)FAA Regulatory Action on UAS: The FAA has proposed a framework of regulations that would allow routine use of certain small UAS in today's aviation system, while maintaining flexibility to accommodate future technological innovations. The FAA proposal offers safety rules for small UAS (under 55 pounds) conducting non-recreational operations. The rule would limit flights to daylight optional use of a visual observer, aircraft registration and marking, and operational limits. ( https://www.faa.gov/uas/nprm/) 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. For public aircraft operations, the FAA issues a Certificate of Waiver or Authorization (COA) that permits public agencies and organizations to operate a particular aircraft, for a particular purpose, in a particular area. The COA allows an operator to use a defined block of airspace and includes special safety provisions unique to the proposed operation. COAs usually are issued for a specific period - up to two years in many cases. ( https://www.faa.gov/uas/public_operations /) AB 1820 Page 11 The FAA works with these organizations to develop conditions and limitations for UAS operations to ensure they do not jeopardize the safety of other aviation operations. The objective is to issue a COA with parameters that ensure a level of safety equivalent to manned aircraft. Usually, this entails making sure that the UAS does not operate in a populated area and that the aircraft is observed, either by someone in a manned aircraft or someone on the ground to ensure separation from other aircraft in accordance with right-of-way rules. Common public uses today include law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and other government operational missions. The FAA manages public aircraft COAs through its COA Online system. Before the FAA grants an agency access to COA Online, the agency will be asked to provide the FAA with a "declaration letter" from the city, county, or state attorney's office assuring the FAA that the proponent is recognized as a political subdivision of the government of the State, as specified, and that the proponent will operate its unmanned aircraft in accordance with federal law. ( https://www.faa.gov/uas/public_operations /) 4)Fourth Amendment Considerations: Technology and Warrantless Searches: Both the United States and the California Constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, sec. 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Arkansas v. Sanders (1979) 442 U.S. AB 1820 Page 12 753, 760, overruled on other grounds by California v. Acevedo, supra.) Courts have been confronted with questions of how evolving technology intersects with the Fourth Amendment. In Kyllo v. United States (2001) 533 U.S. 27, the U.S. Supreme Court considered whether the use of a thermal imager, which detects infrared radiation invisible to the naked eye, to determine whether the defendant was growing marijuana in his apartment, was a search in violation of the Fourth Amendment. The Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (Id. at p. 40.) In United States v. Jones (2012) 132 S. Ct. 945, the Supreme Court was presented with a Fourth Amendment challenge to the use of a Global Positioning System (GPS) tracking device by law enforcement officers to monitor the movements of a suspected drug trafficker's vehicle over a period of 28 days. The Court held that the government's installation of the GPS device on the defendant's private property for the purpose of conducting surveillance constituted a "search" under the Fourth Amendment. GPS technology is intrusive because it "generates a precise, comprehensive, record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future." (Id. at pp. 955-956.) Because technology is always evolving it is important to consider how new technology should be regulated in order to avoid governmental abuse. The Court's decisions in prior cases provide some guidance on how new technology may be evaluated within the framework of the Fourth Amendment's protections against unreasonable searches and seizures. As illustrated in Kyllo and Jones, even in a public space, the use of advanced technology to conduct surveillance without a warrant may be restricted by the Fourth Amendment. AB 1820 Page 13 5)Reasonable Notice Requirement: The proposed use of UAS by law enforcement has been a divisive issue for some local jurisdictions. Public outcry against the unrestrained use of UAS by the government has led some counties to reconsider their use. In 2013, the sheriff of Alameda County attempted to request funding for UAS by the County Board of Supervisors. The sheriff pulled the item from consideration after public criticism. At the end of 2014, it was revealed that the Alameda County Sheriff went ahead and purchased the UAS using the department's own funds. Critics, including the American Civil Liberties Union, described the issue as "'a troubling example of law enforcement trying to acquire invasive and extremely unpopular surveillance technology in secret."' (Lee, Alameda County Sheriff Reveals that He's Bought 2 Drones, S.F. Gate (Dec. 3, 2014).) San Jose, after purchasing an UAS, was also met with a hostile response for not informing the public of the device either before or after its purchase. San Jose police issued a statement acknowledging that the department 'should have done a better job of communicating the purpose and acquisition of the (drone) to [the] community. The community should have the opportunity to provide feedback, ask questions, and express their concerns before we move forward with this project.' (Lee, Alameda County Sheriff Reveals that He's Bought 2 Drones, S.F. Gate (Dec. 3, 2014).) This bill requires a law enforcement agency to provide its UAS policy to the public before deploying UAS technology. This bill also requires the law enforcement agency to present its proposed UAS policy at a regularly scheduled and noticed meeting of its governing body with an opportunity for public comment. 6)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, AB 1820 Page 14 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, unless authorized by federal law. 7)Argument in Opposition: According to California State Sheriffs' Association, ". . ., we are concerned with the bill's provision that would prohibit the use of a UAV in another city or county absent a warrant or exigent circumstances. There is no reason to prohibit the use of a UAV during a search and rescue mission, for example, because the local law enforcement agency with jurisdiction does not own one. Moreover, it is simply impractical that a UAV that is operating on the edge of the jurisdictional boundaries of an authorized city or county could limit the collection of date or images to those found solely within that jurisdiction. If anything, the use of UAVs in neighboring counties should be governed by mutual aid agreements or be allowed in multijurisdictional task forces. "In addition, we must oppose the provisions that would require the promulgation of specific law enforcement polices before the legislative body with "jurisdiction" over the law enforcement agency seeking to use a UAV. While public input is appreciated and is often sought, the state Legislature should not mandate the method in which law enforcement policies are adopted at the local level. We do not believe the public comment period at a board of supervisors meeting - assuming a board of supervisions can be considered the governing body of the office of the elected sheriff - would be conducive to creating appropriate policies and procedures." 8)Related Legislation: AB 56 Quirk, of the 2015-2016 Legislative Session, would authorize a law enforcement agency to use an UAS if the law enforcement agency complies with specified requirements. AB 56 is on the Senate Inactive File 9)Prior Legislation: a) SB 262 (Galgiani), of the 2015-2016 Legislative Session, would have authorize a law enforcement agency to use UAS if the use of the UAS complies with protections against AB 1820 Page 15 unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law, and state law applicable to a law enforcement agency's use of an UAS. b) AB 1327 (Gorell), of the 2013-2014 Legislative Session, would have regulated the use of UAS by public agencies and the dissemination and use of any images, data and footage obtained by those systems. AB 1327 was vetoed. c) 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 failed passage in this committee. REGISTERED SUPPORT / OPPOSITION: Support None Opposition American Civil Liberties Union of California California State Sheriffs' Association Specifically, this bill: > EXISTING LAW: > FISCAL EFFECT: Unknown COMMENTS: > 10)Author's Statement: According to the author, "> 11)Argument in Support: According to > AB 1820 Page 16 12)Argument in Opposition: According to > 13)Related Legislation: > 14)Prior Legislation: > REGISTERED SUPPORT / OPPOSITION: Support > Opposition > Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744