BILL ANALYSIS Ó
AB 69
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
69 (Rodriguez)
As Amended August 18, 2015
Majority vote
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|ASSEMBLY: |75-1 |(May 28, 2015) |SENATE: | 40-0 |(September 2, |
| | | | | |2015) |
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Original Committee Reference: PUB. S.
SUMMARY: Requires law enforcement agencies to consider
specified best practices when establishing policies and
procedures for downloading and storing data from body-worn
cameras.
The Senate amendments:
1)Authorize an agency to keep data for more than 60 days to have
it available in case of a citizen complaint and to preserve
transparency.
2)Reduce the minimum length of time that a law enforcement
agency should retain evidentiary data recorded by a body-worn
camera under specified circumstances from three years to two
years.
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3)Encourage an agency, in determining a retention schedule, to
work with its legal counsel to ensure that storage policies
and practices are in compliance with all relevant laws and
adequately preserve evidentiary chains of custody.
4)Provide that records or logs of access and deletion of data
from body-worn cameras should be retained permanently.
5)Provide that nonevidentiary data including video and audio
recorded by a body-worn camera should be retained for a
minimum of 60 days, after which it may be erased, destroyed,
or recycled.
6)Encourage, rather than require, an agency to retain a body
camera recording that is relevant to a criminal prosecution
for any time in addition to that specified, and in the same
manner as is required by law for other evidence that may be
relevant to a criminal prosecution.
7)Encourage, rather than require, an agency to consider the
enumerated factors to protect the security and integrity of
the data when using a third-party vendor.
EXISTING LAW:
1)States that every person who, intentionally and without the
consent of all parties to a confidential communication, by
means of any electronic amplifying or recording device,
eavesdrops upon or records the confidential communication,
whether the communication is carried on among the parties in
the presence of one another or by means of a telegraph,
telephone, or other device, except a radio, shall be punished
by a fine not exceeding $2,500, or imprisonment in the county
jail not exceeding one year, or in the state prison, or by
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both that fine and imprisonment.
2)Defines "confidential communication" to include any
communication carried on in circumstances as may reasonably
indicate that any party to the communication desires it to be
confined to the parties thereto, but excludes a communication
made in a public gathering or any legislative, judicial,
executive or administrative proceeding open to the public, or
in any circumstance that the parties may reasonably expect
that the communication may be overheard or recorded.
3)Provides that nothing in the sections prohibiting
eavesdropping or wiretapping prohibits specified law
enforcement officers or their assistants or deputies acting
within the scope of his or her authority, from overhearing or
recording any communication that they could lawfully overhear
or record.
AS PASSED BY THE ASSEMBLY, this bill:
1)Stated 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. These policies and procedures shall be based on best
practices.
2)Stated that when establishing policies and procedures for the
implementation and operation of a body-worn camera system, law
enforcement agencies, departments, or entities shall consider
the following best practices regarding the downloading and
storage of body-worn camera data:
a) Designated 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
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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.
b) Established when data should be downloaded to ensure the
data is entered into the system in a timely manner, the
cameras are properly maintained and ready for the next use,
and for purposes of tagging and categorizing the data.
c) Established specific measures to prevent data tampering,
deleting, and copying, including prohibiting the
unauthorized use, duplication, or distribution of body-worn
camera data.
d) Categorized 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;
e) Specifically state the length of time that recorded data
shall be stored;
i) 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.
ii) 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 three 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.
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iii) 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
to a criminal prosecution.
f) Stated 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.
g) 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:
i) Using an experienced and reputable third-party
vendor;
ii) Entering into contracts that govern the vendor
relationship and protect the agency's data;
iii) Using a system that has a built in audit trail to
prevent data tampering and unauthorized access;
iv) Using a system that has a reliable method for
automatically backing up data for storage;
v) Consulting with internal legal counsel to ensure the
method of data storage meets legal requirements for
chain-of-custody concerns; and
vi) Using a system that includes technical assistance
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capabilities.
h) Required 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.
3)Defined "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 are subject to state evidentiary laws.
4)Defined "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.
5)Clarified 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.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)Potentially major non-reimbursable local costs (Local Funds)
to law enforcement and other local agencies that opt to
implement a body-worn camera system.
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2)Potential major future cost pressure (General Fund/Special
Fund) to various state agencies including but not limited to
the California Highway Patrol (CHP), Department of Justice,
Department of Fish and Wildlife, and the Department of
Corrections and Rehabilitation, to the extent these agencies
implement a body-worn camera system in the future. The 2015
Budget Act includes $1 million for the CHP to conduct a pilot
program to study the use of body-worn cameras.
COMMENTS: 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."
Analysis Prepared by:
Stella Choe / PUB. S. / (916) 319-3744 FN:
0001808