BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 56         Hearing Date:    July 7, 2015    
          
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          |Author:    |Quirk                                                |
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          |Version:   |June 24, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                        Subject:  Unmanned Aircraft Systems 



          HISTORY

          Source:   Author

          Prior Legislation:SB 15 (Padilla) failed Assembly Public Safety  
          2014 
                         AB 1327 (Gorell) Vetoed 2014

          Support:  None known

          Opposition:ACLU (unless amended); California Police Chiefs  
                    Association Inc.; California State Sheriffs'  
                    Association (unless amended)

          Assembly Floor Vote:                 61 - 12


          PURPOSE

          The purpose of this bill is to set forth when an unmanned  
          aircraft system can be used by a law enforcement agency.

          Existing federal law, the Aviation Administration Modernization  
          and Reform Act of 2012 requires the Secretary of Transportation  
          to develop a comprehensive plan to safely accelerate the  







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          integration of civil unmanned aircraft systems into the national  
          airspace system.  The plan is required to provide for safe  
          integration of civil unmanned aircraft systems into national  
          airspace as soon as practicable, not later than September 30,  
          2015. (112 P.L. 95, 332.)
           
           Existing law authorizes the Attorney General, chief deputy  
          attorney general, chief assistant attorney general, district  
          attorney or the district attorney's designee to apply to the  
          presiding judge of the superior court for an order authorizing  
          the interception of wire or electronic communications under  
          specified circumstances.  (Penal Code  629.50 et. seq.)

          Existing law prohibits wiretapping or eavesdropping on  
          confidential communications. (Penal Code  630.)
           
           Existing law 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  632.)



          Existing law exempts the Attorney General, any district  
          attorney, specified peace officers such as city police and  
          county sheriffs, and a person acting under the direction of an  
          exempt agency from the prohibitions against wiretapping and  
          other related activities to the extent that they may overhear or  
          record any communication that they were lawfully authorized to  
          overhear or record prior to the enactment of the prohibitions.   
          Existing law provides that any evidence so obtained is  
          admissible in any judicial, administrative, or legislative  
          proceeding.  (Penal Code  633.)

          The US Constitution provides that "the right of the people to be  
          secure in their persons, houses, papers, and effects, against  
          unreasonable searches and seizures, shall not be violated, and  
          no warrants shall issue, but upon probable cause, supported by  
          Oath or affirmation, and particularly describing the place to be  
          searched and the persons or things to be seized." (4th Amendment  
          of the U.S. Constitution.)

          The California Constitution provides that "the right of the  
          people to be secure in their persons, houses, papers and effects  








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          against unreasonable seizures and searches may not be violated;  
          and a warrant may not issue except on probable cause, supported  
          by oath or affirmation, particularly describing the place to be  
          searched and the persons and things to be seized." (Article I,  
          Section 13 of the California Constitution.)
           
           Existing law   defines a "search warrant" as 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  1523.)

          Existing law permits a search warrant to be issued for any of  
          the following grounds: 

                 When the property subject to search was stolen or  
               embezzled; 
                 When property or things were used as the means to commit  
               a felony; 
                 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;
                 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; 
                 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; 
                 When there is a warrant to arrest a person; 
                 When a provider of electronic communication service or  
               remote computing service has records or evidence, as  
               specified, showing that property was stolen or embezzled  
               constituting a misdemeanor, or that property or things are  
               in the possession of any person with the intent to use them  
               as a means of committing a misdemeanor public offense, or  
               in the possession of another to whom he or she may have  
               delivered them for the purpose of concealing them or  
               preventing their discovery; 








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                 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; 
                 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; 
                 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; 
                 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; or when the  
               person is subject tot a gun violence restraining order, 
                 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; and
                 When a sample of the blood of a person constitutes  
               evidence of a DUI. (Penal Code 1524(a).)








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          This bill provides that a law enforcement agency shall not use  
          an unmanned aircraft system (UAS), or contract for the use of an  
          UAS, except as provided.

          This bill provides that a law enforcement agency may use an UAS  
          if the law enforcement agency complies with all of the  
          following: 
                 Protections against unreasonable searches guaranteed by  
               the United States Constitution and the California  
               Constitution. 
                 Federal law applicable to the use of an UAS by an  
               agency, including, but not limited to, regulations of the  
               Federal Aviation Administration (FAA). 
                 State and local applicable to any agency's use of  
               surveillance technology that can be attached to an UAS. 
                  If the use of an UAS by a local law enforcement agency  
               may involve the collection of images from an adjacent  
               county, city, or city and county, the law enforcement  
               agency shall obtain a warrant based upon probable cause. 
                 The agency develops and makes available to the public a  
               policy on the use of an UAS and trains the law enforcement  
               agency's officers and employees on the policy, prior to the  
               use of the UAS. 

                  o         The law enforcement agency uses the UAS  
                    consistent with the policy developed pursuant to this  
                    paragraph.
                  o         Prior to finalizing the policy required by  
                    this paragraph, the law enforcement agency shall  
                    provide an opportunity for public comment at a  
                    regularly scheduled meeting of its governing body.
                  o         The policy required by this paragraph shall  
                    specify, at a minimum, the circumstances under which  
                    an unmanned aircraft may be used and the time limits  
                    applicable to each circumstance.

          This bill prohibits a law enforcement agency from using an UAS  
          to surveil private property unless the law enforcement agency  
          complies with the requirements under this bill, and has either  
          obtained a search warrant based on probable cause, or the  
          express permission of the person or entity to authorize a search  
          of the specific private property to be subjected to  
          surveillance. 








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          This bill allows a law enforcement agency to use an UAS to  
          surveil private property if an exigent circumstance exists,  
          including but not limited to, either of the following  
          circumstances: 
                 In emergency situations if there is an imminent threat  
               to life or of great bodily harm, including, but not limited  
               to fires, hostage crises ,barricaded suspects,  "hot  
               pursuit" situations if reasonably necessary to prevent harm  
               to law enforcement officers or others; and search and  
               rescue operations on land or water; 
                 To determine the appropriate response to an imminent or  
               existing environmental emergency or disaster, including,  
               but not limited to, oils spills or chemical spills
           
          This bill provides that images, footage or data obtained by a  
          law enforcement agency through the use of an UAS shall not be  
          used by the law enforcement agency for any purpose other than  
          for which it was collected.


          This bill provides that images, footage, or data obtained  
          through eh use of an unmanned aircraft system shall be  
          permanently destroyed within one year, except that a law  
          enforcement agency may retain the images, footage or data in the  
          following circumstances:
                 For training purposes. Images, footage or data retained  
               can be used for the education and instruction of a law  
               enforcement agency's employees in matters related to the  
               mission of the law enforcement agency and for no other  
               purpose.
                 For academic research or teaching purposes.  Images,  
               footage or data retained for academic research or teaching  
               purposes shall be used only for the advancement of research  
               and teaching conducted by an academic or research  
               institution and matters related to the mission of the  
               institution and for no other purpose.

          This bill provides that law enforcement may retain beyond one  
          year images, footage, or data obtained by an UAS in both of the  
          following circumstances:
                 If a search warrant authorized the collection of the  
               images, footage or data.








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                 If the images, footage or data are evidence in any claim  
               filed or any pending litigation, internal disciplinary  
               proceeding, enforcement proceeding or criminal  
               investigation.

          This bill provides that unless authorized by federal law, a  
          person or entity including a law enforcement agency shall not  
          equip or arm an unmanned aircraft system with a weapon or other  
          device that may be carried by, or launched or directed from, an  
          unmanned aircraft system and that is intended to cause  
          incapacitation, bodily injury or death or damage to, or  
          destruction of real or personal property.

          This bill provides that all unmanned aircraft systems shall be  
          operated so as to minimize the collection of images, footage or  
          data of persons, places, or things not specified with  
          particularity in the warrant authorizing the use of an unmanned  
          aircraft system, or if no warrant was obtained, for the purposes  
          unrelated to the justification for the operation.

          This bill provides that a local legislative body may adopt more  
          restrictive policies on the acquisition, use of or retention of  
          unmanned aircraft systems.

          This bill 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. 

          This bill defines "criminal intelligence" as information,  
          compiled, analyzed or disseminated in an effort to anticipate,  
          prevent, monitor, or investigate criminal activity.

          This bill provides that "law enforcement agency" means the  
          Attorney General, each district attorney, and each agency of the  
          state or political subdivision of the state authorized by  
          statute to investigate or prosecute law violators.
           
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  








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          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  








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               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          1.  Need for This Bill
          
          According to the author:

               International industry development, growth, and  
               investment over the past several years have allowed  
               Unmanned Aircraft Systems (UAS) to evolve from remotely  
               piloted vehicles with limited capabilities to semi and  
               fully autonomous systems for commercial applications.  
               There are some 100 U.S. companies, academic  
               institutions, and government organizations developing  
               over 300 UAS designs.

               Congress has essentially closed off national airspace  
               to commercial drone flights. The passage of the Federal  
               Aviation Administration (FAA) Modernization and Reform  
               Act of 2012 has directed the FAA to establish  
               regulations by 2015 to allow for commercial use of  
               drones. Six test sites have been approved to allow the  
               FAA to develop research findings and operation  
               experiences to help ensure safe integration. However,  
               the Act does allow for the FAA to grant permits for  
               certain commercial unmanned aircraft operations (e.g.  
               to film movie scenes). The flying of drones for  
               recreational purposes is allowed as long as the  
               aircraft is flown in accordance with certain safety  
               rules. 

               Drones are inherently different from manned aircrafts,  
               both in size and flying capability. Some unmanned  
               aircraft weigh 1,900 pounds and can remain aloft for 30  
               hours or more because there is no need for them to land  
               to change pilots. Some are 6 inches long. Others can  
               perform dangerous missions without risking loss of  
               life.









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               Commercially used drones can serve many societal  
               benefits including assessing hostage situations,  
               addressing bomb threats and detecting forest fires.  
               Despite the possible benefits, there is potential for  
               misuse without clearly established policies that  
               protect privacy rights. 

               There is no California law or regulation governing the  
               use of drones and no guidelines on how public agencies  
               can acquire them. Several jurisdictions have already  
               purchased drones with very little, if any, public  
               announcement or discussion. 

               We live in a culture that is extremely sensitive to the  
               idea of preventing unnecessary government intrusion  
               into any facet of our lives.  Drones, as with other  
               technologies, can be a great asset to the state and  
               improve public safety.  For example, the California  
               Military Department provided firefighters with aerial  
               surveillance while battling the massive Rim Fire in  
               2013 along the foothills of the Sierra Nevada.  This  
               aerial surveillance allowed firefighters to track the  
               fire in real time, allowed commanders to move  
               firefighters out of harm's way and reposition  
               firefighters as the wind shifted the fire across the  
               mountainside.  However, privacy concerns are an issue  
               that must be dealt with effectively if the public is to  
               support the use of drones by their local law  
               enforcement agencies.

               Over the last few years a number of law enforcement  
               agencies have purchased drones with no public input and  
               little transparency in the process. This has stirred  
               feelings of frustration, skepticism and concern from  
               Californians regarding how drones will be operated.  
               Though some agencies have indicated that they are not  
               intending to deploy them anytime soon, allowing for  
               some form of public forum as they develop their  
               policies and guidelines would help ease tensions and  
               help to build trust.

               AB 56 will establish a set of parameters for the use of  
               drones in public and private spaces. The bill creates  
               accountability and transparency by requiring that law  








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               enforcement agencies allow for public engagement in the  
                                  development of their policies regarding the use of  
               drones and requiring that those policies be made  
               publicly available. Additionally the bill provides  
               protections to ensure that there isn't a backdoor use  
               of drones my agencies that have no approved policies in  
               place. This bill recognizes that drones can be a  
               beneficial tool, but at the same time they can be  
               abused without the proper oversight or guidance on  
               their use."

          2.  Technology and the 4th Amendment 

          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 where a person has a reasonable  
          expectation of privacy. 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.] 
           
          Courts have been confronted with questions of how evolving  
          technology intersects with the Fourth Amendment. In Kyllo v.  
          United States (2001) 533 U.S. 27, the U.S. Supreme Court  
          considered whether the use of a thermal imager, which detects  
          infrared radiation invisible to the naked eye, to determine  
          whether the defendant was growing marijuana in his apartment,  
          was a search in violation of the Fourth Amendment. The Court  
          held that "[w]here, as here, the Government uses a device that  
          is not in general public use, to explore details of the home  
          that would previously have been unknowable without physical  
          intrusion, the surveillance is a 'search' and is presumptively  
          unreasonable without a warrant." (Id. at p. 40.) 








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          In United States v. Jones (2012) 132 S. Ct. 945, the Supreme  
          Court was presented with a Fourth Amendment challenge to the use  
          of a Global Positioning System (GPS) tracking device by law  
          enforcement officers to monitor the movements of a suspected  
          drug trafficker's vehicle over a period of 28 days. The Court  
          held that the government's installation of the GPS device on the  
          defendant's private property for the purpose of conducting  
          surveillance constituted a "search" under the Fourth Amendment.  
          GPS technology is intrusive because it "generates a precise,  
          comprehensive, record of a person's public movements that  
          reflects a wealth of detail about her familial, political,  
          professional, religious, and sexual associations. The Government  
          can store such records and efficiently mine them for information  
          years into the future." (Id. at pp. 955-956.) 

          Because technology is always evolving it is important to  
          consider how new technology should be regulated in order to  
          avoid governmental abuse. The Court's decisions in prior cases  
          provide some guidance on how new technology may be evaluated  
          within the framework of the Fourth Amendment's protections  
          against unreasonable searches and seizures. As illustrated in  
          Kyllo and Jones, even in a public space, the use of advanced  
          technology to conduct surveillance without a warrant may be  
          restricted by the Fourth Amendment.

          3.  Use of Drones by Law Enforcement 

          This bill generally prohibits the use of an unmanned aircraft  
          system, commonly referred to as a drone, over private property  
          by law enforcement except with a warrant or permission and under  
          the other provision of this bill.  This bill does not address  
          the use of a drone by law enforcement on public property nor  
          does it address the use of drones by other public agencies.

             a.   Must have a policy.

               In order to use a drone, this bill requires that the law  
               enforcement agency develop a policy.  The bill lists what  
               the policy shall contain and will be amended in the Senate  
               Judiciary Committee, if it passes this Committee, to  
               include:

            i.     Circumstances under which the unmanned aircraft system  








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                 may and may not be used;

            ii.    Time limits applicable to each circumstance;

            iii.   Rules and processes required prior to such use;

            iv.    Individuals who may access or use the system or access  
                 collected information and circumstances under which they  
                 may do so;

            v.     Safeguards to protect unauthorized use or access;

            vi.    Training required for any individual authorized to use  
                 or access the system or information;

            vii.   Sharing of images, data or footage with other law  
                 enforcement and public agencies;

            viii.  How information obtained from another public agency  
                 will be used;

            ix.    Mechanisms to ensure the policy is followed.

             a.   Input from legislative body.

               This bill requires that the law enforcement agency make  
               available to the public the policy on the use of drones.   
               Amendments to be taken in Senate Judiciary, if this passes  
               this Committee, will clarify that the law enforcement  
               agency shall present the proposed policy at a regularly  
               scheduled and noticed public meeting of its governing body  
               with an opportunity for public comment.

               This bill also states that a local governing agency can  
               adopt more restrictive policies on the acquisition, use or  
               retention of a drone. Thus, if a city or county wanted to  
               ban the use of drones by law enforcement in their  
               jurisdiction they could.

          b.Images and footage obtained.

               The images, footage and data obtained through the use of a  
               drone by law enforcement shall in general be destroyed  
               within one year.  However there are exceptions made for  








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               images, footage and data obtained by a warrant, needed in  
               an active investigation, proceeding etc., or if the images,  
               footage or data are being obtained for educational or  
               academic purposes.

             c.   Prohibits arming.

               This bill clearly prohibits the arming of drones with any  
          type of weapon.

             d.   Information from another public agency.

               This bill specifies that the requirements on law  
               enforcement under this bill also apply to anyone law  
               enforcement may contract with.  .  Amendments to be taken  
               in Senate Judiciary, if this passes this Committee, will  
               clarify that use of a drone not only by law enforcement or  
               contract with law enforcement but also by loan or any other  
               arrangement or information obtained from an unmanned  
               aircraft system used by another public agency also must  
               follow the law as set forth in this bill.   

          4. Other Legislation

          SB 262 (Galgiani), which passed this Committee on April 14, 2015  
          with a vote of 5-1 and is now in Senate Judiciary Committee  
          where it hasn't been heard allows a law enforcement agency to  
          use an unmanned aircraft system if the agency complies with: (1)  
          protections against unreasonable searches and seizures; (2)  
          Federal Law applicable to the use of unmanned aircraft systems;  
          and, (3) state law applicable to the use of surveillance  
          technology.

          SB 170 (Gaines) which passed this Committee on April 14, 2015  
          with a vote 6-0 makes the intentional operation of an unmanned  
          aircraft system in airspace over laying a prison or jail a  
          misdemeanor.  This bill is now in the Assembly Committee on  
          Privacy and Consumer Protection.

          SB 271 (Gaines) which passed this Committee on April 14, 2015  
          with a vote 6-0 prohibits the unauthorized use of a drone on a  
          school grounds during school hours or to capture images of the  
          school grounds during school hours. This bill is now in the  
          Assembly Committee on Privacy and Consumer Protection.








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