BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 69 Hearing Date: July 14, 2015
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|Author: |Rodriguez |
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|Version: |July 2, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Peace Officers: Body-Worn Cameras
HISTORY
Source: Author
Prior Legislation:None known
Support: California Public Defenders' Association
Opposition:None known
Assembly Floor Vote: 75 - 1
PURPOSE
The purpose of this legislation is to require law enforcement
agencies to consider specified best practices when establishing
policies and procedures for downloading and storing data from
body-worn cameras.
Existing law defines "peace officer," as specified. (Penal Code
§ 830, et seq.)
Existing law makes it a crime for a person, intentionally and
without requisite consent, to eavesdrop on a confidential
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communication by means of any electronic amplifying or recording
device. (Penal Code § 632.)
Existing law exempts a number of law enforcement agencies from
the prohibition in Penal Code section 632,<1> including the
Attorney General, any district attorney, or any assistant,
deputy, or investigator of the Attorney General or any district
attorney, any officer of the California Highway Patrol, any
chief of police, assistant chief of police, or police officer of
a city or city and county, any sheriff, undersheriff, or deputy
sheriff regularly employed and paid in that capacity by a
county, police officer of the County of Los Angeles, or any
person acting pursuant to the direction of one of these law
enforcement officers acting within the scope of his or her
authority. (Penal Code § 633.)
This bill states the intent of the Legislature to establish
policies and procedures to address issues related to the
downloading and storage data recorded by a body-worn camera worn
by a peace officer.
This bill states that law enforcement agencies, departments, or
entities must consider the following best practices when
establishing policies and procedures for the implementation and
operation of a body-worn camera system:
Designate the person responsible for downloading the
recorded data from the body-worn camera. If the storage
system does not have automatic downloading capability, the
officer's supervisor should take immediate physical custody
of the camera and should be responsible for downloading the
data in the case of an incident involving the use of force
by an officer, an officer-involved shooting, or other
serious incident.
Establish when data should be downloaded to ensure the
data is entered into the system in a timely manner, the
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<1> Penal Code section 633 also exempts listed law enforcement
from the prohibitions in sections 631, 632.5, 632.6, and 632.7.
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cameras are properly maintained and ready for the next use,
and for purposes of tagging and categorizing the data.
Establish specific measures to prevent data tampering,
deleting, and copying, including prohibiting the
unauthorized use, duplication, or distribution of body-worn
camera data.
Categorize and tag body-worn camera video at the time
the data is downloaded and classified according to the type
of event or incident captured in the data;
Specifically state the length of time that recorded data
shall be stored;
o Unless either of the paragraphs below applies, a law
enforcement agency shall retain nonevidentiary data
including video and audio recorded by a body-worn camera
for a minimum of 60 days, after which it will be erased,
destroyed, or recycled. Agencies may keep data longer to
preserve transparency and to have it available in case a
citizen complaint arises.
o A law enforcement agency shall retain evidentiary
data including video and audio recorded by a body-worn
camera under this section for a minimum of two years when
the recording is of an incident involving use of force or
an officer-involved shooting, an incident that leads to
the detention or arrest of an individual, or is relevant
to a formal or informal complaint against an officer or a
law enforcement agency.
o If evidence that may be relevant to a criminal
prosecution is obtained from a recording made by a
body-worn camera, the law enforcement agency shall retain
the recording for any time in addition to the amount of
time specified above and in the same manner as is
required by law for other evidence that may be relevant
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to a criminal prosecution.
o Each agency must work with their legal counsel to
determine a retention schedule to ensure that storage
policies and practices are in compliance with all
relevant laws and adequately preserve evidentiary chain
of custody.
o Records or logs of access and deletion of data from
body-worn cameras must be retained permanently.
State where the body-worn camera data will be stored;
including, for example, an in-house server which is managed
internally, or an online cloud database which is managed by
a third- party vendor.
If using a third-party vendor to manage the data storage
system, the following factors shall be considered to
protect the security and integrity of the data:
o Using an experienced and reputable third-party
vendor;
o Entering into contracts that govern the vendor
relationship and protect the agency's data;
o Using a system that has a built in audit trail to
prevent data tampering and unauthorized access;
o Using a system that has a reliable method for
automatically backing up data for storage;
o Consulting with internal legal counsel to ensure the
method of data storage meets legal requirements for
chain-of-custody concerns; and
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o Using a system that includes technical assistance
capabilities.
Require that all recorded data from body-worn cameras
are property of their respective law enforcement agency and
shall not be accessed or released for any unauthorized
purpose, explicitly prohibit agency personnel from
accessing recorded data for personal use and from uploading
recorded data onto public and social media Internet Web
sites, and include sanctions for violations of this
prohibition.
This bill defines "evidentiary data" as data of an incident or
encounter that could prove useful for investigative purposes,
including, but not limited to, a crime, an arrest or citation, a
search, a use of force incident, or a confrontational encounter
with a member of the public. The retention period for
evidentiary data is subject to state evidentiary laws.
This bill defines "nonevidentiary data" refers to data that does
not necessarily have value to aid in an investigation or
prosecution, such as data of an incident or encounter that does
not lead to an arrest or citation, or data of general activities
the officer might perform while on duty.
This bill clarifies that the provisions in the bill shall not be
interpreted to limit the public's right to access recorded data
under the California Public Records Act.
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
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
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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
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
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Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Legislation
According to the author:
While the 2012 Rialto Study on body-worn cameras
concluded that there is a correlation between the use
of body-worn cameras and the reduction of excessive
use of force complaints, we must not lose sight that
this is a developing technology and we have yet to
learn and fully understand how this technology is
being used in the field and the impact it has on
police-citizen behavior and on crime. AB 69 focuses
on providing guidelines for downloading and storing
body-worn camera data for those law enforcement
agencies that choose to implement a body-worn camera
program.
2. Effect of This Legislation
A number of law enforcement agencies are currently permitted to
utilize body-worn cameras. Existing law, however, does not
require these agencies to have a policy prior to utilizing them.
This legislation would require law enforcement to consider best
practices for the retention of body-worn camera data should an
agency draft a policy.
A recent report released by U.S. Department of Justice's Office
of Community Oriented Policing Services and the Police Executive
Research Forum studied the use of body-worn cameras by police
agencies. (Miller and Toliver, Implementing a Body-Worn Camera
Program: Recommendations and Lessons Learned, Police Executive
Research Forum (Nov. 2014).) This research included a survey of
250 police agencies, interviews with more than 40 police
executives, a review of 20 existing body-camera policies, and a
national conference at which more than 200 police chiefs,
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sheriffs, federal justice representatives, and other experts
shared their knowledge of and experiences with body-worn
cameras. (Id.) The report shows that body-worn cameras can
help agencies demonstrate transparency and address the
community's questions about controversial events. (Id.) Among
other reported benefits are that the presence of a body-worn
camera have helped strengthen officer professionalism and helped
to de-escalate contentious situations, and when questions do
arise following an event or encounter, police having a video
record helps lead to a quicker resolution. (Id.) The report
made specified recommendations related to data storage and
retention policies:
14. Policies should designate the officer as the
person responsible for downloading recorded data
from his or her body-worn camera. However, in
certain clearly identified circumstances (e.g.,
officer-involved shootings, in-custody deaths, or
other incidents involving the officer that result
in a person's bodily harm or death), the officer's
supervisor should immediately take physical custody
of the camera and should be responsible for
downloading the data.
15. Policies should include specific measures to
prevent data tampering, deleting, and copying.
Common strategies include the following:
Using data storage systems with built-in audit
trails;
Requiring the supervisor to physically take
custody of the officer's body-worn camera at the
scene of a shooting or at another serious incident
in which the officer was involved and to assume
responsibility for downloading the data (see
recommendation 14)
Conducting forensic reviews of the camera
equipment when questions arise (e.g., if an officer
claims that he or she failed to record an incident
because the camera malfunctioned)
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16. Data should be downloaded from the body-worn
camera by the end of each shift in which the
camera was used.
Rationale: First, many camera systems recharge and
clear old data during the downloading process, so this
policy helps to ensure cameras are properly maintained
and ready for the next use. Second, events will be
fresh in the officer's memory for the purpose of
tagging and categorizing. Third, this policy ensures
evidence will be entered into the system in a timely
manner.
17. Officers should properly categorize and tag
body-worn camera videos at the time they are
downloaded. Videos should be classified according
to the type of event or incident captured in the
footage.
If video contains footage that can be used in an
investigation or captures a confrontational encounter
between an officer and a member of the public, it
should be deemed "evidentiary" and categorized and
tagged according to the type of incident. If the
video does not contain evidence or it captures a
routine, non-confrontational encounter, it should be
considered "non-evidentiary" or a "non-event."
Rationale: Proper labeling of recorded data is
critical for two reasons. First, the retention time
for recorded data typically depends on the category of
the event captured in the video. Thus, proper tagging
is critical for determining how long the data will be
retained in the agency's system. Second, accurate
tagging helps supervisors, prosecutors, and other
authorized personnel to readily identify and access
the data they need for investigations or court
proceedings.
Lessons learned: Some agencies report that reviewing
and tagging recorded data can be a time-consuming
process that is prone to human error. One agency
addressed this issue by working with the camera
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manufacturer to develop an automated process that
links the recorded data to the agency's records
management system. Some camera systems can also be
linked to electronic tablets that officers can use to
review and tag recorded data while still in the field.
18. Policies should specifically state the length of
time that recorded data must be retained. For
example, many agencies provide 60-day or 90-day
retention times for non-evidentiary data.
Agencies should clearly state all retention times in
the policy and make the retention times public by
posting them on their websites to ensure community
members are aware of the amount of time they have to
request copies of video footage.
Retention times for recorded data are typically
subject to state laws and regulations that govern
other types of evidence. Agencies should consult with
legal counsel to ensure retention policies are in
compliance with these laws:
For evidentiary data, most state laws provide
specific retention times depending on the type of
incident. Agencies should set retention times for
recorded data to meet the minimum time required by
law but may decide to keep recorded data longer.
For non-evidentiary data, policies should
follow state law requirements when applicable.
However, if the law does not provide specific
requirements for non-evidentiary data, the agency
should set a retention time that takes into account
the following:
o Departmental policies governing retention
of other types of electronic records
o Openness of the state's public disclosure
laws
o Need to preserve footage to promote
transparency and investigate citizen complaints
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o Capacity for data storage
Agencies should obtain written approval for
retention schedules from their legal counsel and
prosecutors.
19. Policies should clearly state where body-worn
camera videos are to be stored.
The decision of where to store recorded data will
depend on each agency's needs and resources. PERF
does not recommend any particular storage method.
Agencies should consult with their department's legal
counsel and with prosecutors to ensure the method for
data storage meets any legal requirements and
chain-of-custody needs.
Common storage locations include in-house servers
(managed internally) and online cloud databases
(managed by a third-party vendor).Some agencies burn
recorded data to discs as part of the evidence file
folder.
Lessons learned: Factors that agency leaders should
consider when determining storage location include the
following:
Security concerns
Reliable methods for backing up data
Chain-of-custody issues
Capacity for data storage
Lessons learned: Police executives and prosecutors
report that they have had no issues to date with using
a third-party vendor to manage recorded data on an
online cloud, so long as the chain of custody can be
properly established. When using a third-party
vendor, the keys to protecting the security and
integrity of the data include the following:
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Using a reputable, experienced
third-party vendor
Entering into a legal contract that
governs the vendor relationship and protects the
agency's data
Using a system that has a built-in audit
trail to prevent data tampering and unauthorized
access
Using a system that has a reliable method
for automatically backing up data
Consulting with prosecutors and legal
advisors
(Id. at 42-45.)
This legislation seeks to help implement these recommendations
by requiring law enforcement agencies to consider best practices
regarding the downloading and storage of body-worn camera data.
3. Argument in Support
The California Public Defenders Association states:
CPDA supports the use of body-worn cameras by law
enforcement. Of equal importance to the wearing of
body-worn cameras are policies concerning the use of
these cameras and the proper storage of data collected
from these cameras.
CPDA believes that this bill is a good start in
establishing these policies. Once the use of body-worn
cameras by law enforcement becomes more common, these
policies may need to be revisited and updated to
ensure integrity in their use and integrity in the
data captured by them.
Further, CPDA believes that the use of body-worn
cameras will help build trust between communities and
their law enforcement officers, and promote the truth
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finding process.
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