BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 69


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          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,    |
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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