BILL ANALYSIS Ó
AB 1820
Page 1
Date of Hearing: March 15, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1820 (Quirk) - As Amended March 8, 2016
SUMMARY: SUMMARY: Regulates the use of unmanned aircraft
systems (UAS) by law enforcement agencies. Specifically, this
bill:
1)Defines "UAS" as an unmanned aircraft and associated elements,
including communication links and the components that control
the unmanned aircraft, that are required for the pilot in
command to operate safely and efficiently in the national
airspace system.
2)Prohibits a law enforcement agency from using an UAS,
obtaining a UAS from another public agency by contract, loan
or other arrangement, or using information obtained from an
UAS used by another public agency, except as provided in the
provisions of this bill.
3)Specifies that the provisions of this bill apply to all law
enforcement agencies and private entities when contracting
with or acting as the agent of a law enforcement agency for
the use of an UAS.
4)Allows a law enforcement agency to use UAS system, or use
information obtained from a UAS system used by another public
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agency, only if the law enforcement agency complies with the
regulations of this bill and all other applicable federal,
state, and local laws.
5)Requires a search warrant if the use of a UAS by a local law
enforcement agency involves the collection of images or data
from another city or county, unless an exigent circumstance
exists.
6)Requires a law enforcement agency to develop and make
available to the public the policy on its use of the UAS, and
requires training of the law enforcement agency's officers and
employees on the policy, if they elect to use a UAS.
7)Requires a law enforcement agency to use the unmanned aircraft
system consistent with the policy developed regarding UAS.
8)States that a law enforcement agency shall present the
proposed UAS policy at their regularly scheduled and noticed
public meeting of its governing body with an opportunity for
public comment, before finalizing the policy.
9)Specifies that a law enforcement agency's UAS policy must
include the following:
a) The circumstances under which an unmanned aircraft
system may or may not be used;
b) The rules and processes required before using an
unmanned aircraft system;
c) The individuals who may access or use an unmanned
aircraft system or the information collected by an unmanned
aircraft system and the circumstances under which those
individuals may do so;
d) The safeguards to protect against unauthorized use or
access;
e) The training required for any individual authorized to
use or access information collected by an unmanned aircraft
system;
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f) The guidelines for sharing images, footage, or data with
other law enforcement agencies and public agencies;
g) The manner in which information obtained from another
public agency's use of an unmanned aircraft system will be
used; and
h) Mechanisms to ensure that the policy is adhered to.
10)Prohibits a law enforcement agency from using a UAS, or
information obtained from an UAS used by another public
agency, to surveil private property unless the law enforcement
has obtained a search warrant or express permission of the
person or entity with legal authority to authorize a search of
the property.
11)Allows a law enforcement agency, without first obtaining a
warrant or consent from the property owner over private
property, to use an UAS if an exigent circumstance exists.
12)Specifies that exigent circumstances include, but are not
limited to, the following:
a) In emergency situations if there is an imminent threat
to life or of great bodily harm, including, but not limited
to fires, hostage crises, "hot pursuit" situations if
reasonably necessary to prevent harm to law enforcement
officers or others; and search and rescue operations on
land or water.
b) To determine the appropriate response to an imminent or
existing environmental emergency or disaster, including,
but not limited to, oils spills or chemical spills.
13)Requires images, footage, or data obtained through the use of
an UAS shall be permanently destroyed with one year, except in
the following circumstances the agency may retain the data:
a) For training purposes of the law enforcement agency's
employees in matters related to the mission of the law
enforcement agency;
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b) For academic research or teaching purposes;
c) If a search warrant authorized collection of the images,
footage, or data; and
d) If the images, footage, or data are evidence in any
claim filed or any pending litigation, internal
disciplinary proceeding, enforcement proceeding, or
criminal investigation.
14)Prohibits a person, entity, or public agency from equipping
or arming an UAS with a weapon or other device that may be
carried by or launched from an UAS and that may cause bodily
injury or death or damage to, or the destruction of, real or
personal property, unless authorized by federal law.
15)Specifies that law enforcement agencies using unmanned
aircraft systems shall operate them to minimize the collection
of images, footage, or data of persons, places, or things not
specified with particularity in the warrant authorizing the
use of an unmanned aircraft system, or, if no warrant was
obtained, for purposes unrelated to the justification for the
operation.
16)States that none of the provisions in this bill are intended
to conflict with or supersede federal law, including rules and
regulations of the Federal Aviation Administration (FAA)
17)Authorizes a local legislative body to adopt more restrictive
policies on the acquisition or use of unmanned aircraft
systems by a law enforcement agency.
18)States that except for provisions of this bill, that
surveillance restrictions on electronic devices shall also
apply to UAS.
19)Defines "surveil" as "the purposeful observation of a person
or private property with the intent of gathering criminal
intelligence."
20)Defines "criminal intelligence" as "information compiled,
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analyzed, or disseminated in an effort to anticipate, prevent,
monitor, or investigate criminal activity."
21)Defines "law enforcement agency" as "the Attorney General,
each district attorney, and each agency of the state or
subdivision of the state authorized by statute to investigate
or prosecute law violators and that employs peace officers."
EXISTING LAW:
1)The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable seizures and searches
may not be violated; and a warrant may not issue except on
probable cause, supported by oath or affirmation, particularly
describing the place to be searched and the persons and things
to be seized. (Cal. Const., art. 1, sec. 13.)
2)States that a search warrant is an order in writing, in the
name of the people, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and, in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
3)Permits a search warrant to be issued for any of the following
grounds:
a) When the property subject to search was stolen or
embezzled;
b) When property or things were used as the means to commit
a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
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person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child or possession of matter depicting sexual conduct of a
person under the age of 18 years has occurred or is
occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are
in the possession of any person with the intent to use them
as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
preventing their discovery;
h) When the property or things to be seized include an item
or any evidence that tends to show a violation of a
specified section of the Labor Code, or tends to show that
a particular person has violated that section;
i) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault as
specified;
j) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of,
specified persons;
aa) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms, as specified, if a
prohibited firearm is possessed, owned, in the custody of,
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or controlled by a person against whom a specified
protective order has been issued, the person has been
lawfully served with that order, and the person has failed
to relinquish the firearm as required by law;
bb) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code has been committed or is being committed,
tends to show that a particular person has committed a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
is committing a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code, or will assist in locating an individual
who has committed or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code;
cc) When a sample of the blood of a person constitutes
evidence that tends to show a violation of specified
provisions in the Vehicle Code relating to driving under
the influence offenses and the person from whom the sample
is being sought has refused an officer's request to submit
to, or has failed to complete, a blood test as specified;
and,
dd) Beginning January 1, 2016, the property or things to be
seized are firearms or ammunition or both that are owned
by, in the possession of, or in the custody or control of a
person who is the subject of a gun violence restraining
order, as specified. (Pen. Code, § 1524, subd. (a).)
4)Prohibits wiretapping or eavesdropping on confidential
communications, which excludes communications made in public
or in any circumstance that the parties may reasonably expect
that the communication may be overheard or recorded. (Pen.
Code, § 632, subd. (c).)
5)Provides that nothing in the sections prohibiting
eavesdropping or wiretapping prohibits specified law
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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. (Pen. Code, § 633.)
6)California Public Records Act generally provides that access
to information concerning the conduct of the people's business
is a fundamental and necessary right of every person in this
state. (Gov. Code, § 6250 et. seq.)
7)Provides that public records are open to inspection at all
times during the office hours of the state or local agency and
every person has a right to inspect any public record, except
as provided. Any reasonably segregable portion of a record
shall be available for inspection by any person requesting the
record after deletion of the portions that are exempted by
law. (Gov. Code, § 6253)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Technology has
played a critical role in helping law enforcement groups
strategize new ways to fight crime. A UAS, or drone, can be a
great asset to the state and can play an important role in
improving public safety. For example, the California Military
Department provided firefighters with aerial surveillance
while battling the massive Rim Fire in 2013 along the
foothills of the Sierra Nevada. This aerial surveillance
allowed firefighters to track the fire in real time, allowed
commanders to move firefighters out of harm's way and
reposition firefighters as the wind shifted the fire across
the mountainside.
"Drones may also be able to observe areas that are difficult or
dangerous for officers to enter, they can help assess
dangerous situations (such as a hostage situation or bomb
threat) and assist in strategizing responses to these
incidents.
"Though drone technology is growing quickly, high-tech
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capabilities (such as detailed imagine from high altitudes,
ability to travel large distances) are still under development
or cost prohibitive for law enforcement agencies. However,
without parameters to guide the use of these devices, the
possibility for abuse exists.
"AB 1820 will establish a set of parameters for the use of
drones by law enforcement agencies. Specifically, the bill
requires law enforcement agencies to develop a set of policies
to govern the use of drones that will be presented as a
regularly scheduled meeting of the governing body to allow for
public comment.
"Additionally, AB 1820 indicates instances in which a warrant is
needed for the use of a drone and how long the images captured
by a drone must be retained before they can be destroyed."
2)Background: According to the Federal Aviation Administration
(FAA), an unmanned aircraft system (UAS) is an unmanned
aircraft and all of the associated support equipment, control
station, data links, telemetry, communications and navigation
equipment necessary to operate the unmanned aircraft. A UAS
is flown either by a pilot via a ground control system or
autonomously through use of an on-board computer,
communication link and any additional equipment used to
operate the UAS.
An UAS is inherently different from manned aircrafts, both in
size and flying capability. Some unmanned aircraft weigh 1,900
pounds and can remain aloft for 30 hours or more because there
is no need for them to land to change pilots. Some are six
inches long. Others can perform dangerous missions without
risking loss of life. However, most UAS currently available
for purchase by law enforcement lack the capability to do more
than simply hover for small periods of time before needing to
recharge.
UAS have myriad practical applications. For example, UAS can be
used to survey damage, locate victims, and assess threats in
natural and manmade disasters without risking the lives of
rescue workers. UAS can be used in agriculture to observe and
measure crops while conserving resources and avoiding the use
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of heavy equipment. UAS can also give the media safe,
economical, and environmentally-friendly access to aerial
views for news broadcasts when compared to the current use of
helicopters and other manned aircraft. Some law enforcement
agencies have acquired UAS for the intended use in emergency
situations such as hostage-taking, school shootings, and
kidnapping-related crimes.
California lacks any law or regulation governing the acquisition
and use of UAS by law enforcement agencies. Several
jurisdictions have already purchased drones with very little,
if any, public announcement or discussion.
3)FAA Regulatory Action on UAS: The FAA has proposed a
framework of regulations that would allow routine use of
certain small UAS in today's aviation system, while
maintaining flexibility to accommodate future technological
innovations. The FAA proposal offers safety rules for small
UAS (under 55 pounds) conducting non-recreational operations.
The rule would limit flights to daylight optional use of a
visual observer, aircraft registration and marking, and
operational limits. ( https://www.faa.gov/uas/nprm/)
FAA rules prohibit UAS use in FAA airspace but allow commercial
users to apply for an exemption from the FAA rules along with
an FAA Certificate of Authorization (COA) permitting
commercial uses, such as real estate marketing, wedding
photography, television, film, mapping, and land surveys.
Federal, state and local government agencies, law enforcement,
and public colleges and universities can also receive a COA
from the FAA, authorizing specific uses of UAS for specific
time periods.
For public aircraft operations, the FAA issues a Certificate of
Waiver or Authorization (COA) that permits public agencies and
organizations to operate a particular aircraft, for a
particular purpose, in a particular area. The COA allows an
operator to use a defined block of airspace and includes
special safety provisions unique to the proposed operation.
COAs usually are issued for a specific period - up to two
years in many cases.
( https://www.faa.gov/uas/public_operations /)
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The FAA works with these organizations to develop conditions and
limitations for UAS operations to ensure they do not
jeopardize the safety of other aviation operations. The
objective is to issue a COA with parameters that ensure a
level of safety equivalent to manned aircraft. Usually, this
entails making sure that the UAS does not operate in a
populated area and that the aircraft is observed, either by
someone in a manned aircraft or someone on the ground to
ensure separation from other aircraft in accordance with
right-of-way rules. Common public uses today include law
enforcement, firefighting, border patrol, disaster relief,
search and rescue, military training, and other government
operational missions.
The FAA manages public aircraft COAs through its COA Online
system. Before the FAA grants an agency access to COA Online,
the agency will be asked to provide the FAA with a
"declaration letter" from the city, county, or state
attorney's office assuring the FAA that the proponent is
recognized as a political subdivision of the government of the
State, as specified, and that the proponent will operate its
unmanned aircraft in accordance with federal law.
( https://www.faa.gov/uas/public_operations /)
4)Fourth Amendment Considerations: Technology and Warrantless
Searches: Both the United States and the California
Constitutions guarantee the right of all persons to be secure
from unreasonable searches and seizures. (U.S. Const., amend.
IV; Cal. Const., art. 1, sec. 13.) This protection applies to
all unreasonable government intrusions into legitimate
expectations of privacy. (United States v. Chadwick (1977)
433 U.S. 1, 7, overruled on other grounds by California v.
Acevedo (1991) 500 U.S. 565.) In general, a search is not
valid unless it is conducted pursuant to a warrant. The mere
reasonableness of a search, assessed in light of the
surrounding circumstances, is not a substitute for the warrant
required by the Constitution. (Arkansas v. Sanders (1979) 442
U.S. 753, 758, overruled on other grounds by California v.
Acevedo, supra.) There are exceptions to the warrant
requirement, but the burden of establishing an exception is on
the party seeking one. (Arkansas v. Sanders (1979) 442 U.S.
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753, 760, overruled on other grounds by California v. Acevedo,
supra.)
Courts have been confronted with questions of how evolving
technology intersects with the Fourth Amendment. In Kyllo v.
United States (2001) 533 U.S. 27, the U.S. Supreme Court
considered whether the use of a thermal imager, which detects
infrared radiation invisible to the naked eye, to determine
whether the defendant was growing marijuana in his apartment,
was a search in violation of the Fourth Amendment. The Court
held that "[w]here, as here, the Government uses a device that
is not in general public use, to explore details of the home
that would previously have been unknowable without physical
intrusion, the surveillance is a 'search' and is presumptively
unreasonable without a warrant." (Id. at p. 40.)
In United States v. Jones (2012) 132 S. Ct. 945, the Supreme
Court was presented with a Fourth Amendment challenge to the
use of a Global Positioning System (GPS) tracking device by
law enforcement officers to monitor the movements of a
suspected drug trafficker's vehicle over a period of 28 days.
The Court held that the government's installation of the GPS
device on the defendant's private property for the purpose of
conducting surveillance constituted a "search" under the
Fourth Amendment. GPS technology is intrusive because it
"generates a precise, comprehensive, record of a person's
public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual
associations. The Government can store such records and
efficiently mine them for information years into the future."
(Id. at pp. 955-956.)
Because technology is always evolving it is important to
consider how new technology should be regulated in order to
avoid governmental abuse. The Court's decisions in prior cases
provide some guidance on how new technology may be evaluated
within the framework of the Fourth Amendment's protections
against unreasonable searches and seizures. As illustrated in
Kyllo and Jones, even in a public space, the use of advanced
technology to conduct surveillance without a warrant may be
restricted by the Fourth Amendment.
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5)Reasonable Notice Requirement: The proposed use of UAS by law
enforcement has been a divisive issue for some local
jurisdictions. Public outcry against the unrestrained use of
UAS by the government has led some counties to reconsider
their use. In 2013, the sheriff of Alameda County attempted
to request funding for UAS by the County Board of Supervisors.
The sheriff pulled the item from consideration after public
criticism. At the end of 2014, it was revealed that the
Alameda County Sheriff went ahead and purchased the UAS using
the department's own funds. Critics, including the American
Civil Liberties Union, described the issue as "'a troubling
example of law enforcement trying to acquire invasive and
extremely unpopular surveillance technology in secret."' (Lee,
Alameda County Sheriff Reveals that He's Bought 2 Drones, S.F.
Gate (Dec. 3, 2014).)
San Jose, after purchasing an UAS, was also met with a hostile
response for not informing the public of the device either
before or after its purchase. San Jose police issued a
statement acknowledging that the department 'should have done
a better job of communicating the purpose and acquisition of
the (drone) to [the] community. The community should have the
opportunity to provide feedback, ask questions, and express
their concerns before we move forward with this project.'
(Lee, Alameda County Sheriff Reveals that He's Bought 2
Drones, S.F. Gate (Dec. 3, 2014).)
This bill requires a law enforcement agency to provide its UAS
policy to the public before deploying UAS technology. This
bill also requires the law enforcement agency to present its
proposed UAS policy at a regularly scheduled and noticed
meeting of its governing body with an opportunity for public
comment.
6)Weaponized UAS: UAS devices have the capability of being
armed with weapons, lethal and nonlethal. The United States
has used armed UAS to target militants in military operations
abroad. (Christopher Drew, Drones Are Weapons of Choice in
Fighting Qaeda, New York Times (Mar. 17, 2009).)
Domestically, there has been a push by some law enforcement
agencies to arm UAS to fire rubber bullets and tear gas. (See
Drones over US to get weaponized - so far, non-lethally,
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RT.com (May 24, 2012).) This bill would prohibit the
equipping or arming of an UAS with a weapon or other
launchable device that may cause injury, death, or property
damage, unless authorized by federal law.
7)Argument in Opposition: According to California State
Sheriffs' Association, ". . ., we are concerned with the
bill's provision that would prohibit the use of a UAV in
another city or county absent a warrant or exigent
circumstances. There is no reason to prohibit the use of a
UAV during a search and rescue mission, for example, because
the local law enforcement agency with jurisdiction does not
own one. Moreover, it is simply impractical that a UAV that
is operating on the edge of the jurisdictional boundaries of
an authorized city or county could limit the collection of
date or images to those found solely within that jurisdiction.
If anything, the use of UAVs in neighboring counties should
be governed by mutual aid agreements or be allowed in
multijurisdictional task forces.
"In addition, we must oppose the provisions that would require
the promulgation of specific law enforcement polices before
the legislative body with "jurisdiction" over the law
enforcement agency seeking to use a UAV. While public input
is appreciated and is often sought, the state Legislature
should not mandate the method in which law enforcement
policies are adopted at the local level. We do not believe
the public comment period at a board of supervisors meeting -
assuming a board of supervisions can be considered the
governing body of the office of the elected sheriff - would be
conducive to creating appropriate policies and procedures."
8)Related Legislation: AB 56 Quirk, of the 2015-2016
Legislative Session, would authorize a law enforcement agency
to use an UAS if the law enforcement agency complies with
specified requirements. AB 56 is on the Senate Inactive File
9)Prior Legislation:
a) SB 262 (Galgiani), of the 2015-2016 Legislative Session,
would have authorize a law enforcement agency to use UAS
if the use of the UAS complies with protections against
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unreasonable searches guaranteed by the United States
Constitution and the California Constitution, federal law,
and state law applicable to a law enforcement agency's use
of an UAS.
b) AB 1327 (Gorell), of the 2013-2014 Legislative Session,
would have regulated the use of UAS by public agencies and
the dissemination and use of any images, data and footage
obtained by those systems. AB 1327 was vetoed.
c) SB 15 (Padilla), of the 2013-2014 Legislative Session,
would have required law enforcement to get a warrant for
drone use if it implicated a legitimate expectation of
privacy. Would have limited drone use by public agencies
to within the scope of the agencies authority and prevented
public agencies from providing drone information to law
enforcement without a warrant. Would have directed public
agencies to destroy drone information after one year except
as specified. SB 15 failed passage in this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
American Civil Liberties Union of California
California State Sheriffs' Association
Specifically, this bill: >
EXISTING LAW: >
FISCAL EFFECT: Unknown
COMMENTS: >
10)Author's Statement: According to the author, ">
11)Argument in Support: According to >
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12)Argument in Opposition: According to >
13)Related Legislation: >
14)Prior Legislation: >
REGISTERED SUPPORT / OPPOSITION:
Support
>
Opposition
>
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744