BILL ANALYSIS Ó
AB 1327
Page 1
Date of Hearing: April 16, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1327 (Gorell) - As Amended: April 3, 2013
SUMMARY : Establishes standards for the use of unmanned
aircraft systems (UAS) by public entities and private parties.
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
below.
3)Allows a law enforcement agency to use an UAS, or contract for
its use, if the agency has a reasonable expectation that the
UAS will collect evidence relating to criminal activity and if
it has obtained a warrant based on probable cause pursuant to
law.
4)Allows a law enforcement agency to use an UAS, or contract for
its use, without a warrant under the following circumstances:
a) In emergency situations, including, but not limited to:
i) Fires;
ii) Hostage crises;
iii) "Hot pursuit" situations; and
iv) Search and rescue operations on land or water.
b) To conduct traffic accident investigations.
AB 1327
Page 2
c) To inspect state parks for illegal vegetation.
5)Permits a law enforcement agency to use an UAS, or contract
for its use, to block, interfere with, or otherwise control
communication or data signals of electronic devices if the
agency has obtained a court order upon a showing of good
cause, except that a court order is not required in
circumstances involving an imminent threat to persons or
property, provided that the UAS is deployed for no more than
six hours.
6)Permits a public agency to use an UAS, or contract for its
use, for the following purposes:
a) Geological inspections related to the mission of the
agency;
b) Detecting oil spills;
c) Specific to CAL-FIRE, for fire-related activities.
7)Requires the acquisition of an UAS, or a contract for its use,
by a local public agency to be subject to the specific
approval of the applicable local public agency's legislative
body. Requires the local legislative body, in approving the
acquisition or purchase, to adopt policies governing the use
and deployment of the UAS, consistent with the provisions of
this bill.
8)Requires a state agency that uses an UAS, or contracts for its
use, to provide by January 1 of each year a report to the
Governor that includes, but is not limited to, the agency's
acquisitions, purchases, rentals, or leases of UAS.
9)Requires a public agency that uses an UAS, or contracts for
its use, to provide reasonable notice to the public, which, at
a minimum, shall consist of a one-time announcement regarding
the agency's intent to deploy UAS technology and a description
of the technology's capabilities.
10)Requires images, footage, or data obtained by a public agency
through the use of an UAS to be destroyed permanently within
10 days, except to the extent required as evidence of a crime,
part of an ongoing investigation of a crime, or for training
purposes, or pursuant to a court order. Requires that any
AB 1327
Page 3
image, footage, or data retained by a public agency to be open
to public inspection, unless expressly exempt by law.
11)Prohibits a private person or entity, except those under
contract with a public agency, from using an UAS, or contract
for its use, for the purpose of surveillance of another person
without that person's consent. Provides that a person who is
subject to surveillance without consent may seek and obtain an
injunction prohibiting the use of images, footage, or data
related to the person that was obtained through the
surveillance, and that the person shall also be awarded
liquidated damages of $5,000 for each day of surveillance and
any actual damages in excess of that amount.
12)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.
13)Provides that none of the provisions above are intended to
conflict with or supersede federal law, including rules and
regulations of the Federal Aviation Administration.
EXISTING 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
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code Section 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
AB 1327
Page 4
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
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
AB 1327
Page 5
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; and
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. (Penal Code
Section 1524(a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Commercial
Unmanned Aerial Vehicles (UAVs) market is expected to grow by
700% by 2018. While the potential benefits of UAVs in our
communities and state can be tremendous, there are privacy
concerns that must be acknowledged and addressed. AB 1327
establishes boundaries and restrictions that protect the
privacy rights of Californians. When used responsibly, UAVs
can benefit a number of industries, some of which already use
various forms of UAVs. This legislation allows governmental
entities to use drones in non-intrusive ways, including
agricultural purposes, traffic accident investigation,
detection of oil spills, fire prevention, and search and
rescue operations. Due to the uncharted territory that will
be created by the significant increase of UAVs in the
intermediate future, this bill provides protections of the
freedoms guaranteed by the Constitution (4th amendment) and
anticipates the potential privacy vulnerabilities that can
AB 1327
Page 6
surface due to the continual advancement of UAV technology.
In summation, this bill recognizes UAVs as beneficial tools,
which can also be susceptible to abuse without appropriate
oversight."
2)Background : According to the author, "The Federal Aviation
Administration predicts that 30,000 drones will fill the
nation's skies in less than 20 years. The FAA is mandated to
integrate unmanned aerial systems into the national airspace
by 2015 (FAA Modernization and Reform Act of 2012). The number
of potential civil and commercial uses for unmanned aerial
vehicles in society is vast and can be beneficial tools. But
these tools can also be susceptible to abuse without
appropriate oversight and rules."
3)Constitutional Considerations : The effect of certain
provisions of this bill on constitutionally-protected rights
warrants consideration.
a) First Amendment Considerations : The First Amendment to
the United States Constitution provides that "Congress
shall make no law ... abridging the freedom of speech, or
of the press; or the right of the people peaceably to
assemble." (U.S. Const., amend. I.) The language of
California's free speech and press provisions is different
than that of the First Amendment and have been construed by
the courts as "more protective, definitive and inclusive of
rights to expression of speech" than their federal
counterparts. (Robins v. Pruneyard Shopping Center (1979)
23 Cal.3d 899, 908.)
i) Suppression of Speech : This bill does not define
the type, extent, or scope of the "control" that law
enforcement agencies would be given under this bill in
controlling communication or data signals of electronic
devices. Presumably, in circumstances when a law
enforcement agency seeks a court order requesting to use
an UAS to block, interfere with, or otherwise control
communication or data signals, the court could prescribe
the boundaries of the agencies control, although this is
not a certainty. More troubling would be circumstances
when law enforcement agencies would not need to seek a
court order and show good cause to use an UAS to block,
interfere with, or otherwise control communication or
data signals. In these situations, it presumably would
AB 1327
Page 7
be left up to the agencies to determine the extent of
their control over the signals. Arguably, the only check
available to determine the appropriateness of an agency's
actions in these circumstances would be by a court after
the UAS has been used and would result in
constitutionally-protected rights being infringed upon if
the court finds that the agency overstepped its
authority.
ii) Restriction of the Press : This bill would require a
private party, not in contract with a public agency, to
seek consent of a person should that party use an UAS for
the purpose of surveillance of that other person and
would subject that party to pay specified damages to the
person if consent is not obtained. This bill is silent
as to whether that provision applies to filming in public
places or if what is filmed is a matter of public
interest, which is a protected right under the First
Amendment. (See Fordyce v. City of Seattle (9th Cir.
1995) 55 F.3d 436, 439.) Could this bill, as opponents
argue, prohibit the use of an UAS by a private party, and
violate that private party's First Amendment right, to
photograph a law enforcement officer using force on a
member of the public without the officer's consent?
Additionally, as this bill does not define what
constitutes "surveillance," confusion might result in
determining whether a private party was engaged in such
conduct.
b) Fourth Amendment Considerations: Warrantless Searches :
Both the United States and the California constitution's
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
AB 1327
Page 8
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.)
The exceptions to the warrant requirement in the use of an
UAS by law enforcement provided for in this bill are
expressly "not limited" to the "emergency situations"
listed. Consequently, the list of emergency situations
could grow. Furthermore, as this bill is silent as to what
circumstances constitute "emergency situations," it is
presumably up to the determination of each law enforcement
agency which occasions are emergencies, which could lead to
incongruent use of UAS among jurisdictions. Moreover, the
only check available to determine if an emergency situation
did in fact take place is by a court after the UAS has been
used and would result in constitutionally-protected rights
being infringed upon if the court finds that the situation
did not rise to the level of an emergency.
4)Privacy Concerns : This bill requires that images, footage, or
data obtained by a public agency's use of an UAS be destroyed
within 10 days unless an exception applies. It, however, does
not appear to require destruction of the same type of
information obtained by private parties with which a public
agency contracts. As these private parties are not directly
answerable to the public, this raises privacy concerns with
respect to the data that is collected and how it is used,
handled, and shared by the private party.
The exception to the destruction of information obtained by a
public agency through use of an UAS for "training purposes"
appears to be very broad and possibly susceptible to misuse or
misinterpretation as that term in not defined.
Additionally, there are concerns regarding whether UAS are
similarly situated to manned aircrafts. Would UAS be
permitted to fly at lower altitudes than manned aircrafts, and
would that opportunity provide UAS with the ability to record
or capture reasonably-expected private actions and behaviors
that manned aircrafts do not would not be able to capture?
This, in part, would be dependent on federal rules and
regulations to be promulgated by the Federal Aviation
Administration (FAA).
5)Ability of Law Enforcement to Adequately Investigate Criminal
AB 1327
Page 9
Conduct : In contrast to the privacy concerns raised above,
does the 10-day data retention period called for under this
bill provide law enforcement a sufficient amount of time to
conduct a thorough and proper review of the information to
determine if criminal activity has been captured in the
images, footage, or data?
6)Adequacy of Oversight of State Public Agencies' Use of UAS :
This bill requires approval by a local government's
legislative body if a local public agency wishes to acquire an
UAS but does not provide for similar approval by the
Legislature on the state level. While it requires that a
state public agency annually report to the Governor the
agency's acquisitions, purchases, rentals, or leases of UAS,
this bill does not require reporting of how, for what purpose,
or the frequency with which the state public agency used an
UAS. Consequently, this raises concerns of whether this bill
provides an adequate level of public or legislative oversight
over state public agencies' use of UAS?
7)Ability of Local Governments to Set More Stringent Standards
on the Use of UAS : This bill requires that should a local
legislative body approve the acquisition or purchase of UAS
for use by a local public agency under that body's
jurisdiction, the local legislative body is required to adopt
policies governing the use and deployment of the UAS
"consistent with" the provisions put forward by the bill.
In Alameda County, the sheriff attempted to request funding
for UAS. Ultimately, public backlash and concern led to the
sheriff to abandon his pursuit of the UAS. (Woodall, War on
terror money funding drones, surveillance in the Bay Area,
Oakland Tribune (April 7, 2013).) Contrary to the outcome in
Alameda County, other municipal public agencies, such as the
San Mateo County Office of Emergency Services, San Francisco,
and San Jose, have continued their pursuit of UAS. (Ibid.)
As recent events in Alameda County have shown, use of UAS can
be a divisive issue. While this bill requires that a local
public agency must get approval from its appropriate
legislative body to acquire an UAS-which currently is not
required if a law enforcement agency uses an UAS for
legitimate law enforcement purposes-does requiring local
governments to adopt policies "consistent with" this bill
preempt them from adopting more protective standards than
AB 1327
Page 10
state law? For example, if the Alameda County Board of
Supervisors in deciding to approve the use of UAS by the
county sheriff wanted to prohibit the UAS from being used for
traffic accident investigations or to block, interfere with,
or otherwise control communication or data signals, could it
be allowed to put in place those restrictions considering this
bill allows for UAS to be used in such situations?
8)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 damage.
9)FAA Modernization and Reform Act of 2012 : The federal
government enacted legislation titled the FAA Modernization
and Reform Act of 2012 that, in part, requires the Secretary
of Transportation, in consultation with representatives of the
aviation industry, federal agencies that employ UAS technology
in the national airspace system, and the UAS industry, to
develop a comprehensive plan to safely accelerate the
integration of civil UAS into the national airspace system.
(H.R. 658 2011-12, Section 332.)
10)Federal and Other States Legislation : According to the
author, there have been five bills introduced in Congress
relating to UAS and their use and approximately 30 bills
introduced by state legislatures across the country.
11)Argument in Support: None submitted
12)Arguments in Opposition :
a) According to the American Civil Liberties Union of
California (ACLU) , "We raise a number of concerns and urge
you to amend your legislation so that the government does
not use drones to engage in suspicionless surveillance and
that private individuals who use drones for protected first
amendment activities are not restricted from those
AB 1327
Page 11
activities."
The ACLU goes on to outline their issues as follows:
"Contracting out to Private Companies: We are concerned
about authorizing law enforcement to contract out with
private entities to operate drones. The contracting out of
governmental law enforcement duties to companies that do
not answer directly to the public raises due process
concerns and also poses accountability problems.
Individuals whose constitutional and civil rights are
violated by government contractors often face significant
hurdles to enforcing their rights. ? Particularly given
the sensitive privacy concerns raised by drones, law
enforcement agencies should not be permitted to evade
constitutional and statutory obligations by contracting out
essential government functions. Underscoring these
concerns, AB 1327's provision requiring data destruction
within a specific period does not apply to private
entities.
"Interruption or Control of Communication or Data Signals
of Electronic Devices: AB 1327 authorizes law enforcement
to use a drone to 'block, interfere with, or otherwise
control communication or data signals of electronic
devices' (i.e., cell phones, computers) (a) for up to 6
hours where there is an imminent threat to persons or
property and (b) with a court order upon a showing of 'good
cause.' This provision seems to violate the Federal
Communication Act's prohibition against 'interference' with
radio communications. See 47 U.S.C. §333. Depending on
the meaning of 'control,' it may also violate the federal
Wiretap Act, which authorizes law enforcement to intercept
electronic communications only with a warrant based upon a
heightened probable cause plus standard. See 18 U.S.C.
§2518. It may also create a conflict with existing state
law which, similar to federal law, establishes substantive
and procedural requirements, including a warrant based on
probable cause, for law enforcement to intercept electronic
communications. See Penal Code §629.50 et seq.
"Data Gathered by Non-Law Enforcement Public Agencies Must
Not Be Shared with Law Enforcement without a Warrant: The
bill envisions public agencies using drones for geological,
fire observation, and other purposes. It is critical that
AB 1327
Page 12
law enforcement be required to obtain a warrant for data
obtained by these drones otherwise non-law enforcement
public agencies could be used to bypass the warrant
requirement.
"Exceptions to the Warrant Requirement Should be Limited to
Exigent Circumstances Only: The bill currently allows for
an exceptions to the warrant requirement for a laundry list
of circumstances under the rubric of 'emergency
circumstances.' ?
"Local Legislative Bodies Should be Able to Adopt More
Protective Standards than State Law: We are very
supportive of the bill's requirement that local legislative
bodies approve the acquisition of a drone. The bill also
helpfully provides that local legislative bodies are
authorized to and indeed must adopt policies governing the
use and deployment of the drone. These two elements of the
legislation are extremely important and ensure that the
local community has input into this important issue through
their elected civilian leaders. However, the bill appears
to preempt local standards that may be stronger than this
bill by requiring that the policies be 'consistent with
this title.' ?
"The Data Retention Provision (Section 14353) Needs
Tightening: First, as mentioned above, this data
retention provision only applies to data "obtained by a
public agency," and it is unclear if this applies when a
public entity contracts with a private entity to operate
the drone (and analyze the data it collects), assuming it
would be wise to allow contracting out law enforcement to
private companies. Second, the exemptions are too broad.
The bill allows for retention for "evidence of a crime."
For example, jaywalking and maliciously obstructing a
sidewalk is a crime. Images of virtually every political
protest -- even ones that are entirely peaceful -- will
have evidence of a crime. "Training purposes" is also
another circumstance under which data need not be deleted -
but that is undefined and very broad. ?
"The Prohibition against Private Use of Drones for
Surveillance without Consent Presents Highly Problematic
First Amendment Concerns: There is a First Amendment
right to record certain events that occur in public. ? The
AB 1327
Page 13
recording of police officers using force against arrestees
has served the important purpose of increasing police
accountability. This bill would appear to prohibit the use
of a drone to photograph police officers using force on a
member of the public, and other events of public interest.
As a result, the bill raises grave First Amendment
concerns."
b) According to the California State Sheriffs' Association ,
"This measure would impose requirements for the use of
unmanned aircrafts in excess of what is required for the
use of manned vehicles, including helicopters or fixed-wing
aircraft. While we understand the privacy concerns that
may arise from the misuse of unmanned aircraft, we believe
that it is inappropriate to impose requirements beyond what
is necessary under the Fourth Amendment of the United
States Constitution to protect against unreasonable
searches.
"In addition, AB 1327 would also require law enforcement to
destroy information within 10 days of it being obtained by
an unmanned aircraft system. Unfortunately, criminal
investigations do not neatly fall into timelines. We
recognize the desire to protect and keep this data private,
but the requirement to purge the data after 10 days will
severely hamper investigations for law enforcement.
"Finally, this measure seeks to require local legislative
approval for law enforcement to purchase or to enter a
contract for an unmanned aircraft system. There is no
reason why the purchase of such equipment should differ
from any other purchase and approval process by individual
counties and law enforcement agencies."
13)Related Legislation :
a) AB 1326 (Gorell) would provide tax exemptions relative
to the construction of new manufacturing plants and for the
purchase of machinery used to manufacture UAS. AB 1326 is
awaiting a hearing in the Assembly Revenue and Taxation
Committee.
b) SB 15 (Padilla) would make legislative findings and set
standards for the use of UAS. SB 15 is awaiting a hearing
in the Senate Judiciary Committee.
AB 1327
Page 14
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
American Civil Liberties Union of California
California State Sheriffs' Association
Electronic Frontier Foundation
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744