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