BILL ANALYSIS Ó
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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