BILL ANALYSIS Ó
AB 1327
Page 1
Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 1327 (Gorell and Bradford) - As Amended: April 29, 2013
SUBJECT : Unmanned aircraft systems.
SUMMARY : Establishes parameters for the use of unmanned
aircraft systems by state and local government agencies,
including law enforcement agencies. Specifically, this bill :
1)Prohibits a public agency from using an unmanned aircraft
system (UAS), or from contracting for the use of a UAS, except
as provided in this bill.
2)Allows a law enforcement agency (LEA) to use a UAS if it 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 current law.
3)Allows a LEA to use a UAS without a warrant under the
following circumstances:
a) In emergency situations if there is imminent threat to
life or of great bodily harm, including, but not limited
to, fires, hostage crises, "hot pursuit" situations if
reasonably necessary to prevent harm to law enforcement
officers or others, and search and rescue operations on
land or water; and,
b) To assess the necessity of first responders in
situations relating to traffic accidents or to inspect
state parks for illegal vegetation.
4)Allows a LEA to use a UAS to block, interfere with, or
otherwise control communication or data signals of electronic
devices only if it has obtained an order signed by a judicial
officer prior to the interruption and consistent with the
following:
a) The order shall include all of the following:
i) That probable cause exists that the service is being
or will be used for an unlawful purpose or to assist in a
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violation of the law;
ii) That absent immediate and summary action to
interrupt communications service, serious, direct,
immediate, and irreparable danger to public safety will
result; and,
iii) That the interruption of communications service is
narrowly tailored to prevent unlawful infringement of
speech that is protected by the First Amendment to the
United States Constitution, or Section 2 of Article I of
the California Constitution, or a violation of any other
rights under federal or state law.
b) The order shall clearly describe the specific
communications service to be interrupted with sufficient
detail as to customer, cell sector, central office, or
geographical area affected, shall be narrowly tailored to
the specific circumstances under which the order is made,
and shall not interfere with more communication than is
necessary to achieve the purposes of the order.
c) The order shall authorize an interruption of service
only for as long as is reasonably necessary and shall
require that the interruption cease once the danger that
justified the interruption is abated and shall specify a
process to immediately serve notice on the communications
service provider to cease the interruption.
5)Prohibits a LEA from using a UAS to block, interfere with, or
otherwise control communication or data signals of electronic
devices without a court order except pursuant to the
provisions outlined below.
6)If a government entity reasonably determines that an extreme
emergency situation exists that involves immediate danger of
death and there is insufficient time, with due diligence, to
first obtain a court order, then the government entity may
interrupt communications service without first obtaining a
court order as required by this bill, provided that the
interruption meets the grounds for issuance of a court order
pursuant to 4), above, and that the entity does all of the
following:
a) Apply for a court order without delay, and in no event,
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later than two hours after commencement of an interruption
of communications service;
b) Provide to the provider of communications service
involved in the service interruption a statement of intent,
signed by an authorized official of the governmental
entity, to apply for a court order. The statement of
intent shall clearly describe the extreme emergency
circumstances, and the specific communications service to
be interrupted with sufficient detail as to the customer,
cell sector, central office, or geographical area affected;
and,
c) Provide conspicuous notice of the application for a
court order authorizing the communications service
interruption on its Internet Web site without delay, unless
the circumstances that justify interruption of
communications service without first obtaining a court
order justify not providing the notice.
7)Allows a public agency other than a LEA to use a UAS, or
contract for the use of a UAS, for the purposes of geological
inspections related to the mission of the agency or for the
purpose of detecting oil spills. The California Department of
Forestry and Fire Protection (CAL FIRE) may use a UAS, or
contract for the use of a UAS, for fire-related activities.
Data collected pursuant to this provision shall not be
disseminated outside the collecting agency or provided to a
LEA unless the agency has obtained a warrant for the data
based upon probable cause pursuant to current law.
8)Requires the acquisition of a UAS, or a contract for the use
of a UAS, for purposes authorized by this bill by a local
public agency to be subject to the specific approval of the
applicable local public agency's legislative body. The local
legislative body, in approving the acquisition or purchase,
shall also adopt policies governing the use and deployment of
the UAS, consistent with this bill.
9)Requires a state agency that uses a UAS, or contracts for the
use of a UAS, to provide, no later than January 1 of each
year, an annual report to the Governor that includes, but is
not limited to, the agency's acquisitions, purchases, rentals,
or leases of a UAS and a description of each instance in which
the UAS was deployed, including the purpose of the deployment
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and whether a warrant was obtained.
10)Requires a public agency that uses a UAS, or contracts for
the use of a UAS, pursuant to this bill to first provide
reasonable notice to the public. Reasonable notice shall, at
a minimum, consist of a one-time announcement regarding the
agency's intent to deploy UAS technology and a description of
the technology's capabilities.
11)Prohibits images, footage, or data obtained by a public
agency, or any entity contracting with a public agency,
through the use of a UAS from being disseminated outside the
collecting agency, and prohibits its use for any purpose other
than that for which it was collected. Images, footage, or
data obtained through the use of a UAS shall be permanently
destroyed within 10 days, except if retained for training
purposes or if a warrant authorized collection of or access to
the images, footage, or data.
12)Requires images, footage, or data described above that is
retained by a public agency to be open to public inspection,
unless expressly exempt by law.
13)Requires images, footage, or data retained for training
purposes to be used only for the education and instruction of
an agency's employees in matters related to the mission of the
agency and for no other purpose.
14)Requires a LEA to only view data gathered by a person or
entity using a UAS, or a person under contract to a public
agency, if the LEA has obtained a warrant or has the
permission or approval of that person or entity, or person
under contract to a public agency, provided that the data
gathered by the person or entity was lawfully obtained.
15)Prohibits a person or entity, including a public agency
subject to the provisions of this bill or a person or entity
under contract to a public agency, for the purpose of that
contract, from equipping or arming a UAS with a weapon or
other device that may be carried by or launched from a UAS and
that may cause bodily injury or death, or damage to, or the
destruction of, real or personal property.
16)Provides that nothing in this bill is intended to conflict
with or supersede federal law, including rules and regulations
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of the Federal Aviation Administration (FAA).
17)Provides that nothing in this bill prohibits a local agency
from adopting more restrictive policies on the use of a UAS
for the protection of a person's privacy.
18)Defines "UAS" to mean 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 (NAS).
19)Provides that the surveillance restrictions on electronic
devices pursuant to current state law governing the invasion
of privacy shall apply to a UAS.
20)Provides that no reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local
agency or school district because, in that regard, this act
creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction,
within the meaning of current law governing state-mandated
local costs, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution. However, if the Commission on State Mandates
determines that this act contains other costs mandated by the
state, reimbursement to local agencies and school districts
for those costs shall be made pursuant to current law
governing state-mandated local costs.
EXISTING LAW :
1)Requires, pursuant to the Aviation Administration
Modernization and Reform Act of 2012, the Secretary of
Transportation to develop a comprehensive plan to safely
accelerate the integration of civil UAS into the NAS. The
plan is required to provide for the safe integration of civil
UAS into the NAS as soon as practicable, but not later than
September 30, 2015.
2)States that a search warrant is an order in writing, in the
name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and, in the
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case of a thing or things or personal property, bring the same
before the magistrate, and allows a search warrant to be
issued on a number of grounds.
3)Requires each application for an order authorizing or
approving the interception of a wire, oral, or electronic
communication to be made in writing upon oath or affirmation
to a judge of competent jurisdiction, to state the applicant's
authority to make such application, and to include the
specified information.
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.
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.
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.
7)Makes it a misdemeanor for an agent, operator, or employee of
any telegraph or telephone office to willfully refuse to
transmit a message unless the customer bill is not paid or the
message encourages treason or other unlawful acts or
facilitates escape of a criminal.
8)Authorizes law enforcement to order a cut, divert, or reroute
to a telephone line to prevent communications where there is
probable cause that a person is holding hostages and
committing a crime, or in a barricade situation.
9)Finds, pursuant to a California Supreme Court decision, that
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it is unlawful for a telephone corporation to interrupt
landline telephone service at the request of law enforcement
unless the interruption is pursuant to a court order based
upon a finding that there is probable cause the service is
being used in illegal acts that, absent immediate
interruption, would result in significant dangers to the
public health, safety, and welfare.
FISCAL EFFECT : Unknown
COMMENTS :
1)This bill generally prohibits public agencies from using or
contracting for the use of a UAS, but provides several
exceptions. Most of these exceptions pertain to the use of a
UAS by LEAs.
This bill prohibits LEAs from using a UAS without a warrant,
unless an emergency situation poses an imminent threat to life
or great bodily harm, or to assess the need for first
responders relating to traffic accidents or to inspect state
parks for illegal vegetation. The bill also allows LEAs to
use a UAS with a warrant if there is a reasonable expectation
that the UAS will collect evidence relating to criminal
activity. It also outlines the circumstances under which LEAs
may use a UAS to block, interfere with or otherwise control
communications or data signals of electronic devices, either
with or without a judicial or court order depending on the
specific public safety threat at hand.
This bill allows a small number of restricted uses of a UAS by
public agencies other than LEAs, and prohibits outside
dissemination or use of information gathered by these agencies
without a warrant. This bill requires local legislative
approval before a local agency acquires or contracts for the
use of a UAS, and requires local agencies to adopt policies
governing UAS use consistent with this bill's provisions.
Under this bill, state agencies that use or contract for the
use of a UAS must report specified information annually to the
Governor. Public agencies that use a UAS must provide
reasonable notice to the public beforehand.
This bill requires images, footage or data obtained by a
public agency using a UAS to be permanently destroyed within
10 days unless it is kept for training purposes or if a
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warrant authorized collection of or access to the information.
The bill requires retained images, footage or data to be open
to public inspection. This bill prohibits the equipping or
arming of a UAS with a weapon or other device that may be
carried by or launched from a UAS and that may cause bodily
injury or death, or damage to, or the destruction of, real or
personal property.
This bill is sponsored by the author.
2)According to the author's office, "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 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."
3)According to the FAA, "UAS come in a variety of shapes and
sizes and serve diverse purposes. They may have a wingspan as
large as a Boeing 737 or smaller than a radio-controlled model
airplane?Because they are inherently different from manned
aircraft, introducing UAS into the nation's airspace is
challenging for both the FAA and aviation community. UAS must
be integrated into a NAS that is evolving from ground-based
navigation aids to a GPS-based system in NextGen. Safe
integration of UAS involves gaining a better understanding of
operational issues, such as training requirements, operational
specifications and technology considerations.
"The FAA first authorized use of unmanned aircraft in the NAS
in 1990. Since then, the agency has authorized limited use of
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UAS for important missions in the public interest, such as
firefighting, disaster relief, search and rescue, law
enforcement, border patrol, military training and testing and
evaluation. Today, UAS perform border and port surveillance
by the Department of Homeland Security, help with scientific
research and environmental monitoring by the National
Aeronautics and Space Administration and the National Oceanic
and Atmospheric Administration, support public safety by law
enforcement agencies, help state universities conduct
research, and support various other missions for public
(government) entities.
"Unmanned aircraft are flying now in the NAS under very
controlled conditions. Operations potentially range from
ground level to above 50,000 feet, depending on the specific
type of aircraft. However, UAS operations are currently not
authorized in Class B airspace, which exists over major urban
areas and contains the highest density of manned aircraft in
the NAS.
"There are currently two ways to get FAA approval to operate a
UAS. The first is to obtain an experimental airworthiness
certificate for private sector (civil) aircraft to do research
and development, training and flight demonstrations. The
second is to obtain a Certificate of Waiver or Authorization
(COA) for public aircraft. Routine operation of UAS over
densely-populated areas is prohibited.
"COAs are available to public entities that want to fly a UAS
in civil airspace?Applicants make their request through an
online process and the FAA evaluates the proposed operation to
see if it can be conducted safely. The COA allows an operator
to use a defined block of airspace and includes special
provisions unique to the proposed operation. For instance, a
COA may require flying only under Visual Flight Rules (VFR)
and/or only during daylight hours. COAs usually are issued
for a specific period - up to two years in many cases.
"Most COAs require coordination with an appropriate air
traffic control facility and may require a transponder on the
UAS to operate in certain types of airspace. Because UAS
technology cannot currently comply with 'see and avoid' rules
that apply to all aircraft, a visual observer or an
accompanying 'chase plane' must maintain visual contact with
the UAS and serve as its 'eyes' when operating outside
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airspace restricted from other users."
The FAA reports the number of COAs issued for the following
years:
2009 146
2010 298
2011 313
2012 257
There were 327 active COAs as of February 15, 2013. The FAA
projects that approximately 15,000 UAS will be in the NAS by
2020 and that 30,000 UAS will be in the NAS by 2030.
1)The FAA "has been working with its government partners to
streamline COA procedures. In 2009, the FAA, NASA and the
Departments of Defense and Homeland Security formed a UAS
Executive Committee, or "ExCom," to address UAS integration
issues. ExCom established a working group that developed
suggestions to expedite the COA process and increase
transparency.
"For new applications from public users, the FAA has an
on-line process that ensures paperwork is complete and ready
to be assessed. Today, the average time to issue an
authorization for non-emergency operations is less than 60
days, and the renewal period is two years. The agency has
expedited procedures in place to grant one-time COAs for
time-sensitive emergency missions, such as disaster relief and
humanitarian efforts.
"The 2012 reauthorization bill also directed the FAA to 'allow
a government public safety agency to operate unmanned aircraft
weighing 4.4 pounds or less' under certain restrictions. The
bill specified these UAS must be flown within the line of
sight of the operator, less than 400 feet above the ground,
during daylight conditions, inside Class G (uncontrolled)
airspace and more than five miles from any airport or other
location with aviation activities.
"Prior to the congressional action, the FAA and the Justice
Department had been working on an agreement to streamline the
COA process for law enforcement, and both agencies signed a
formal Memorandum of Understanding (MOU) in March 2013.
Initially, law enforcement organizations will receive a COA
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for training and performance evaluation. When the
organization has shown proficiency in flying its UAS, it will
receive an operational COA. UAS will not be flown over outdoor
assemblies of people or heavily trafficked roadways. The
agreement also expands the allowable UAS weight up to 25
pounds."
As noted above, the FAA and the Justice Department in March
entered into a MOU concerning the operation of UAS by LEAs to
implement a streamlined training and authorization process to
enable nonfederal LEAs to operate UAS within the US safely,
effectively, and lawfully. This MOU outlines operational
requirements, elements, and procedures that LEAs must follow
in order to use the streamlined UAS authorization process.
These operational requirements include a number of provisions.
UAS operations must be conducted within a nonmoving "Defined
Incident Perimeter" (DIP) that is controlled by the LEA and
identified by geographic coordinates (pursuit missions are not
authorized). These flights must take place at or below 400
feet above ground level; remain within the visual line of
sight of the pilot and employ at least one observer; assure
the safety of people and property; and, be conducted only
during daylight hours. Moving DIPs to accommodate pursuit
missions is prohibited, as are flights over outdoor assemblies
of people or heavily trafficked roadways. Flights are
generally restricted to Class G airspace, or uncontrolled
airspace. The use of the streamlined UAS authorization
process may be used only by LEAs deploying UAS with a gross
take-off weight that does not exceed 25 pounds.
2)UAS can be used for a broad range of public purposes, such as
wildfire mapping, agricultural monitoring, disaster
management, thermal infrared power line surveys, law
enforcement, telecommunication, weather monitoring, aerial
imaging/mapping, television news coverage, sporting events,
moviemaking, environmental monitoring, oil and gas
exploration, and freight transport.
Aside from law enforcement uses, UAS technology presents a
number of possible applications for local jurisdictions. The
California Special Districts Association identified the
following potential applications of UAS technology for special
districts:
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a) Conservation districts currently have permits for a
remote control aircraft club on lands managed by the
district and contract for surveillance of mining operations
on district property. UAS technology offers an opportunity
to reduce costs compared to aerial photography or Light
Detection and Ranging or Laser Imaging Detection and
Ranging currently in use. UAS could also offer
opportunities to monitor watershed and environmental
conditions;
b) For water districts, the opportunities are limitless and
the potential cost savings are significant because of the
ability to cover vast territories with less staff, travel,
and equipment expenses;
c) Mosquito and vector control districts could benefit from
UAS technology, which can help with habitat surveillance by
covering a larger area by aerial inspection rather than
ground inspection; and,
d) Fire protection districts could benefit if given similar
authority that this bill grants to CAL FIRE. This could be
especially important for search and rescue missions.
1)For a thorough discussion of federal constitutional issues
(freedom of speech, freedom of the press, and unreasonable
search and seizure) and privacy implications associated with
the use of a UAS, please refer to the analysis of this bill by
the Assembly Public Safety Committee, which passed this bill
with substantial amendments on a 4-2 vote on April 23, 2013.
2)The California State Sheriffs' Association, in opposition,
states, "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
UAS. 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.
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"Finally, this measure seeks to require local legislative
approval for law enforcement to purchase or to enter a
contract for an UAS. 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."
3)Related bills introduced this session include:
a) AB 737 (Fox) requires the Governor's Office of Business
and Economic Development to prepare and submit a proposal
for an unmanned aircraft test site to the FAA on or before
May 6, 2013. AB 737 is pending in the Senate Rules
Committee;
b) AB 1326 (Gorell) establishes a sales and use tax
exemption for tangible personal property used in UAV
manufacturing, and allows UAV manufacturers an income tax
credit based on qualified wages paid to employees. AB 1326
is pending in the Assembly Revenue and Taxation Committee;
c) AJR 6 (Fox) urges the FAA to consider California as one
of six national test sites for UAS. AJR 6 is pending on
the Assembly Floor; and,
d) SB 15 (Padilla) clarifies that a constructive invasion
of privacy may occur through the use of a device affixed to
or contained within a UAS, as defined; amends criminal
prohibitions relating to eavesdropping and privacy to
include the use of devices affixed to or contained within a
UAS; prohibits UAS from being equipped with a weapon; and,
requires an application for a search warrant to specify if
a UAS will be used in the execution of the search warrant,
and the intended purpose for which the UAS will be used.
SB 15 is pending in the Senate Public Safety Committee.
4)This bill is keyed a state mandate, which means the state
could be required to reimburse local agencies and school
districts for implementing the bill's provisions if the
Commission on State Mandates determines that the bill contains
costs mandated by the state.
5)Support arguments : Supporters argue that this bill provides a
framework for the use of UAS that protects the privacy rights
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of the state's residents.
Opposition Arguments : Opponents object to this bill's
provisions restricting the use of UAS and the information they
gather by LEAs.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California State Sheriffs' Association
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958