BILL ANALYSIS                                                                                                                                                                                                    



          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  

             --------------------------


          <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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