BILL ANALYSIS Ó AB 69 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 69 (Rodriguez) As Amended August 18, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |75-1 |(May 28, 2015) |SENATE: | 40-0 |(September 2, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AB 69 Page 2 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 AB 69 Page 3 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 AB 69 Page 4 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. AB 69 Page 5 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 AB 69 Page 6 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. AB 69 Page 7 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