BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1327
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          Date of Hearing:   April 23, 2013
          Counsel:        Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 1327 (Gorell) - As Amended:  April 18, 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.









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             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 pursuant to federal law  
            outlining the procedure for interception of wire, oral, or  
            electronic communications, 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; and,

             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.  Provides that this bill does not prohibit a local  
            agency from adopting more restrictive policies on the use of  
            UAS for the protection of a person's privacy.

          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  








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            10 days, except to the extent required as evidence of a crime,  
            part of an ongoing investigation of a crime, or for training  
            purposes (which shall be used only for the education and  
            instruction of an agency's employees and for no other  
            purpose), or pursuant to a court order.  Requires that any  
            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)Defines "surveillance" as the monitoring of persons, places,  
            or events by any means of electronic technology, including,  
            but not limited to, interception, overt or covert  
            observations, photography, or the use of any tracking device.

          13)Prohibits a law enforcement agency from viewing  
            lawfully-obtained data gathered by a person or entity, other  
            than a public agency subject to the provisions above, or a  
            person under contract to a public agency, unless the law  
            enforcement agency has obtained a warrant or has the  
            permission or approval of that person or entity, or person  
            under contract to a public agency.

          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.

          15)Provides that restrictions on the use of an UAS by a law  
            enforcement agency shall apply to any person, entity, or  
            public agency that uses, operates, or contracts for an UAS.

          16)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.








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           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  
               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  








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               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,  
               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).]








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          3)Requires each application for an order authorizing or  
            approving the interception of a wire, oral, or electronic  
            communication be made in writing upon oath or affirmation to a  
            judge of competent jurisdiction, state the applicant's  
            authority to make such application, and include the following  
            information:

             a)   The identity of the investigative or law enforcement  
               officer making the application, and the officer authorizing  
               the application;

             b)   A full and complete statement of the facts and  
               circumstances relied upon by the applicant, to justify his  
               belief that an order should be issued, including:

               i)     Details as to the particular offense that has been,  
                 is being, or is about to be committed;

               ii)    A particular description of the nature and location  
                 of the facilities from which or the place where the  
                 communication is to be intercepted, except as specified;

               iii)   A particular description of the type of  
                 communications sought to be intercepted; and

               iv)    The identity of the person, if known, committing the  
                 offense and whose communications are to be intercepted;


             c)   A full and complete statement as to whether other  
               investigative procedures have been tried and failed or why  
               they reasonably appear to be unlikely to succeed if tried  
               or to be too dangerous;

             d)   A statement of the period of time for which the  
               interception is required to be maintained. If the nature of  
               the investigation is such that the authorization for  
               interception should not automatically terminate when the  
               described type of communication has been first obtained, a  
               particular description of facts establishing probable cause  
               to believe that additional communications of the same type  
               will occur thereafter; 

             e)   A full and complete statement of the facts concerning  








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               all previous applications known to the individual  
               authorizing and making the application, made to any judge  
               for authorization to intercept, or for approval of  
               interceptions of, wire, oral, or electronic communications  
               involving any of the same persons, facilities or places  
               specified in the application, and the action taken by the  
               judge on each such application; and,

             f)   Where the application is for the extension of an order,  
               a statement setting forth the results thus far obtained  
               from the interception, or a reasonable explanation of the  
               failure to obtain such results.  (18 United States Code  
               Section 2518.)

          4)Makes it a crime for a person, intentionally, and without  
            requisite consent, to eavesdrop on a confidential  
            communication by means of any electronic amplifying or  
            recording device.  (Penal Code Section 632.)

          5)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.  [Penal Code Section 647(j)(1).]

          6)Makes it a crime for a person to use a concealed camcorder,  
            motion picture camera, or photographic camera to secretly  
            videotape, film, photograph, or record by electronic means,  
            without consent, another identifiable person, under or through  
            the clothing being worn by that person or if that person may  
            be in a state of full or partial undress, under circumstances  
            when that person has a reasonable expectation of privacy and  
            when there is an intent to invade the privacy of that person,  
            as specified.  [Penal Code Section 647(j)(2).]

           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  








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            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  
            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 provides that, in  
                 circumstances not involving an imminent threat to persons  








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                 or property, a law enforcement agency must first obtain a  
                 court order before it can use an UAS, or contract for its  
                 use, to block, interfere with, or otherwise control  
                 communication or data signals of electronic devices.   
                 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.  Warranting  
                 more consideration would be circumstances when law  
                 enforcement agencies would not need to seek a court order  
                 to use an UAS to block, interfere with, or otherwise  
                 control communication or data signals.  In these  
                 situations, it presumably would 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.  This issue raises the  
                 further policy consideration of whether law enforcement  
                 should be the entity making the decision to block,  
                 interfere with, or otherwise control these signals, as  
                 opposed to elected officials, who ultimately are held  
                 accountable to the public, through a vote or adoption of  
                 regulations or policies. 

                ii)    Restriction of the Press  :  This bill requires a  
                 private party, not in contract with a public agency, to  
                 obtain the consent of a person should that party use an  
                 UAS for the purpose of surveillance of that other person  
                 and subjects that party to pay specified damages to the  
                 person if consent is not obtained.  Recent amendments to  
                 this bill have defined "surveillance" as "the monitoring  
                 of persons, places, or events by any means of electronic  
                 technology, including, but not limited to, interception,  
                 overt or covert observations, photography, or the use of  
                 any tracking device."   This bill, however, remains  
                 silent as to whether the restriction on a private  
                 individual's use of an UAS applies to filming in public  








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                 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? 

              b)   Fourth Amendment Considerations:  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. 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, or possible misuse, of UAS.  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.

               This bill provides that a law enforcement agency can view  








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               legally obtained data gathered by a person or entity, other  
               than a public agency subject to this bill, or a person  
               under contract to a public agency, only if the law  
               enforcement agency has obtained a warrant or has the  
               permission or approval of that person or entity, or person  
               under contract to a public agency.  If a law enforcement  
               agency can obtain the permission of a private person to  
               view legally obtained data he or she gathered, could that  
               defeat the purpose of requiring law enforcement to obtain a  
               warrant to view that data?  If a person, however, is  
               willing to voluntarily share legally obtained data from a  
               UAS but could not without the law enforcement agency  
               obtaining a warrant first, would that unnecessarily hinder  
               law enforcement's ability to conduct criminal  
               investigations?
           
            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.  Recent amendments  
            to this bill have placed the same "restrictions on the use of  
            an [UAS] by a law enforcement agency to any person, entity, or  
            public agency that uses, operates, or contacts for an [UAS]."   
            This language appears to place the same limitations only on  
            the "use" of an UAS but not on the use and required  
            destruction of information gathered by an UAS used 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.  

             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 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  
            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  








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            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 this bill 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 but  
            may adopt "more restrictive policies on the use of [UAS] for  
            the protection of a person's privacy."

            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 municipalities, 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.  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-recent amendments to this bill allow a local agency  
            to adopt more restrict policies.  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,  








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            interfere with, or otherwise control communication or data  
            signals of electronic devices, it appears that this bill would  
            allow the county to put in place those restrictions if they  
            were for privacy protection.  

          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 prohibits 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, 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  
               activities."  
                
               The ACLU goes on to outline their issues as follows:








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               "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  
               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  








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               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  
               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  








                                                                  AB 1327
                                                                  Page  16

               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) provides tax exemptions relative to the  
               construction of new manufacturing plants and for the  
               purchase of machinery used to manufacture UAS.  AB 1326 is  
               being heard by the Assembly Revenue and Taxation Committee  
               on the same week as this hearing.
                
              b)   AJR 6 (Fox) requests the FAA to consider California as  
               one of the sic planned test sites for UAS and integration  
               of those systems into the next generation air  
               transportation system.  AJR 6 on Assembly Third Reading.

             c)   SB 15 (Padilla) would make legislative findings and set  








                                                                  AB 1327
                                                                  Page  17

               standards for the use of UAS.  SB 15 is pending hearing by  
               the Senate Public Safety Committee.  
           
           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