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 AB 1327 Page 2 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, AB 1327 Page 3 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 AB 1327 Page 4 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 AB 1327 Page 5 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 AB 1327 Page 6 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 AB 1327 Page 7 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 AB 1327 Page 8 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 AB 1327 Page 9 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 AB 1327 Page 10 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 AB 1327 Page 11 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: AB 1327 Page 12 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. AB 1327 Page 13 "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 AB 1327 Page 14 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