BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1820


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          Date of Hearing:  April 21, 2016


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                   Ed Chau, Chair


          AB 1820  
          (Quirk) - As Amended April 11, 2016


          SUBJECT:  Unmanned aircraft systems


          SUMMARY:  Regulates the use of unmanned aircraft systems (UAS)  
          by state and local law enforcement agencies by requiring that a  
          law enforcement agency develop a policy on the use of UAS,  
          disclose the proposed policy to the public, and train the  
          agency's officers and staff on the policy before UAS is  
          deployed.  Specifically, this bill:   


          1)Requires a law enforcement agency that plans to use a UAS,  
            obtain a UAS from another public agency by contract, loan, or  
            other arrangement, use information collected by another  
            agency's UAS, or permit another law enforcement agency to use  
            a UAS within the agency's jurisdiction, to do all of the  
            following: 

             a)   If the use of UAS involves capturing images, footage or  
               data from another jurisdiction, then the agency must obtain  
               a warrant (unless an exigent circumstance exists) or enter  
               into a written, public agreement with the appropriate law  
               enforcement agency in the other city, county, or city and  
               county, and that other agency must post the agreement on  
               its website; 









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             b)   Develop and make available to the public a policy on the  
               agency's use of UAS.  The policy must include:

               i)     The circumstances under which a UAS may or may not  
                 be used;
               ii)    The rules and processes required before a UAS may be  
                 used;


               iii)   The individuals who may access or use a UAS or the  
                 information collected via UAS and the circumstances under  
                 which those individuals may do so;


               iv)    The safeguards to protect against unauthorized use  
                 or access;  


               v)     The training required for an individual authorized  
                 to use or access information collected via UAS;


               vi)    The guidelines for sharing images, footage, or data  
                 with other law enforcement agencies and public agencies; 


               vii)   The manner in which information obtained from  
                 another public agency's use of UAS will be used; and


               viii)  Mechanisms to ensure the policy is followed. 


             c)   Present the proposed policy at a regularly scheduled and  
               noticed public meeting of its governing body with an  
               opportunity for public comment.

             d)   Train the agency's officers and staff on the agency's  
               policy before UAS is deployed.








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             e)   Follow the agency's policy when deploying UAS. 

             f)   Make a good faith effort to minimize the collection of  
               images, footage, or data or persons, places, or things not  
               relevant to the search warrant or justification for using  
               the UAS.  

             g)   Destroy any images, footage, or data gathered using UAS  
               within one year, except that:

               i)     UAS images, footage and data may be kept and used  
                 longer than a year for training, academic research or  
                 teaching purposes; 

               ii)    UAS images, footage and data may be kept and used  
                 longer than a year if they were originally collected  
                 under a search warrant; and

               iii)   UAS images, footage and data may be kept and used  
                 longer than a year if they are evidence in any claim,  
                 pending litigation, internal disciplinary proceeding,  
                 enforcement proceeding, or criminal investigation. 

             h)   If the use of UAS involves surveilling private property,  
               then the agency must get a search warrant or express  
               permission from the person with authority to authorize a  
               search, unless there is an "exigent circumstance" including  
               life and death emergencies, hot pursuit situations, search  
               and rescue operations, or to determine the response needed  
               in an emergency or disaster. 

          2)Bans law enforcement agencies, and any other person or entity  
            from arming a UAS, unless permitted by federal law.

          3)States that the bill is not intended to conflict with or  
            supersede federal law, including rules and regulations of the  
            Federal Aviation Administration (FAA).









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          4)Permits a local legislative body to adopt more restrictive  
            policies on local law enforcement use of UAS. 



          5)Defines terms, including "criminal intelligence," "law  
            enforcement agency," "surveil," and UAS. 

          EXISTING  
          LAW:  


          1)Provides, pursuant to the United States Constitution, that  
            "the right of the people to be secure in their persons,  
            houses, papers, and effects, against unreasonable searches and  
            seizures, shall not be violated, and no warrants shall issue,  
            but upon probable cause, supported by Oath or affirmation, and  
            particularly describing the place to be searched and the  
            persons or things to be seized."  (U.S. Const. amend. IV)   

          2)Provides, pursuant to the California Constitution, that "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."  (CA Const. art. I, Section 13)
             
           3)Vests the FAA with the authority to regulate airspace use,  
            management and efficiency, air traffic control, safety,  
            navigational facilities, and aircraft noise.  (49 United  
            States Code (U.S.C.) Sec. 40103, 44502, and 44701-44735)  


           4)Requires, under the FAA Modernization and Reform Act of 2012,  
            the FAA to safely integrate UAS operation into the national  
            airspace system by September 30, 2015, and to develop and  








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            implement certification requirements for the operation of UAS  
            in the national airspace system.  (Public Law Number 112-095)  


           5) Requires law enforcement, in certain instances, to obtain a  
            warrant to search a person or a person's property and 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.  (Penal Code (PC) Section 1523)



          6)Defines physical invasion of privacy in terms of trespassing  
            in order to capture an image, sound recording or other  
            impression in certain circumstances.  It also defines  
            constructive invasion of privacy as attempting to capture such  
            an impression under circumstances in which the plaintiff had a  
            reasonable expectation of privacy.  (California Civil Code  
            Section 1708.8)  


           FISCAL EFFECT:  Unknown


          COMMENTS:  


           1)Purpose of this bill  .  This bill is intended to protect  
            personal privacy and promote transparency in law enforcement  
            by establishing a set of public parameters for law enforcement  
            use of UAS, commonly known as "drones," over public and  
            private spaces in California.  This measure is  
            author-sponsored. 

           2)Author's statement  .  According to the author, "Technology has  
            played a critical role in helping law enforcement groups  








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            strategize new ways to fight crime.  An unmanned aircraft  
            system (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 capabilities (such as detailed imaging from high  
            altitudes and the ability to fly long 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  
            requires law enforcement agencies to develop a set of policies  
            to govern the use of drones that will be presented at 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 may be retained."



           3)What is a UAS?   The FAA defines a UAS as an unmanned aircraft  
            system and all of the associated support equipment, control  
            stations, data links, telemetry, and communications and  
            navigation equipment necessary to operate the unmanned  
            aircraft.  Often more commonly referred to as "drones," a UAS  
            is flown either by a pilot via a ground control system or  
            autonomously through use of an on-board computer.  

           4)FAA regulation of UAS  .  Current FAA rules prohibit UAS use in  








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            FAA airspace but allow commercial, governmental, and research  
            institution users to apply for an exemption from the FAA rules  
            along with an FAA Certificate of Authorization (COA)  
            permitting specific commercial, governmental or research uses.  
            Therefore, law enforcement agencies can obtain a COA to use  
            UAS.    



           5)Regulating law enforcement's use of UAS  .  This bill is in part  
            a re-introduction of AB 56 (Quirk) from 2015, which proposed  
            requiring law enforcement agencies to obtain approval from  
            their governing bodies before deploying UAS.  AB 56 is  
            currently on the Senate Inactive File as a result of  
            opposition from law enforcement and civil liberties groups.  



          Like AB 56, this bill requires development of a detailed policy  
            before police deployment of UAS, but instead of requiring  
            approval from the local governing body, this bill mandates  
            only that the governing body hold a public meeting on the  
            policy and provide an opportunity for public comment.  The  
            bill specifically authorizes cities and counties to adopt more  
            restrictive policies on local law enforcement use of UAS than  
            this bill requires.  



            Similar to AB 56 (Quirk) from 2015, this bill also requires  
            that for surveillance of private property, a law enforcement  
            agency must either get a search warrant or get consent from  
            the person with the legal authority to grant access to the  
            property, unless there is an exigent circumstance, such as a  
            hostage or a hot pursuit situation.  This bill also carries  
            over some of the AB 56 parameters restricting retention of UAS  
            data to one year and the requirement that law enforcement  
            officials and staff be trained in how to follow the UAS  
            policy.  AB 56 passed this Committee on a 9-1 vote on April  








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            30, 2015.



           6)Recent amendments regarding cross-jurisdictional issues  .  The  
            California State Sheriff's Association (CSSA) has expressed a  
            concern that the bill makes operation of UAS near a city's or  
            county's borders impractical because the bill requires a law  
            enforcement agency to get a search warrant if operation of the  
            UAS involves capturing images, footage or data from another  
            jurisdiction.  CSSA has proposed that operation of UAS in or  
            near neighboring cities and counties should be governed by  
            mutual aid agreements or multi-jurisdictional task forces.  

            Recent amendments (April 11, 2016) to the bill accomplish  
            three things: 



             a)   Specifically allow a law enforcement agency to let  
               another law enforcement agency operate a UAS within its  
               jurisdiction as long as the agency enters into a written,  
               public agreement governing the UAS operation and the  
               agreement is posted on the website of the agency in the  
               jurisdiction where UAS operations will occur; 



             b)   Clarify that a law enforcement agency only has a duty to  
               make a good faith effort to minimize the collection of  
               images of persons, places, or things unrelated to the  
               reason the UAS is being operated.  This amendment is  
               intended to recognize the fact that it is virtually  
               impossible to completely minimize or eliminate the capture  
               of unrelated images; and  

             c)   Make technical changes to correct Legislative Counsel  
               drafting errors.  









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            The amendments are designed to reduce the number of concerns  
            that law enforcement groups have with the bill but, according  
            to opponents, they do not completely remove opposition from  
            law enforcement groups. 





           7)Prohibition on weaponized UAS  .  UAS have the capability of  
            being armed with weapons, both lethal and nonlethal.  The U.S.  
            has used armed UAS to target militants in military operations  
            abroad.  ("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 drones to fire  
            rubber bullets and tear gas.  ("Drones over US to get  
            weaponized - so far, non-lethally," RT.com, May 24, 2012)  

          This bill would ban any person or entity, including a law  
            enforcement agency, from arming UAS with weapons, launchable  
            devices, or other capabilities that may cause incapacitation,  
            injury, death, or property damage.
           8)Fourth Amendment decisions on the use of aircraft over private  
            property  .  In considering the specific question of when a  
            person has a reasonable expectation of privacy in the airspace  
            around his or her home, courts have consistently held that  
            while the Fourth Amendment to the U.S. Constitution protects  
            citizens from unreasonable searches and seizures, it does not  
            guarantee privacy.  For example, the U.S. Supreme Court in  
            1986 ruled that the Santa Clara, California police department  
            did not violate the Fourth Amendment when it rented a private  
            plane and viewed the defendant's backyard marijuana crops from  
            an altitude of 1,000 feet, despite the fact that the yard was  
            surrounded by a 6-foot outer fence and a 10-foot inner fence.   
            (Cal. v. Ciraolo (1986) 476 U.S. 207, 209.)  








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          The Court observed that the defendant's expectation of privacy  
            in his backyard was unreasonable.  That the backyard and its  
            crop were within the "curtilage" of respondent's home did not  
            itself bar all police observation.  The mere fact that an  
            individual has taken measures to restrict some views of his  
            activities does not preclude an officer's observation from a  
            public vantage point where he has a right to be and which  
            renders the activities clearly visible.  The police  
            observations here took place within public navigable airspace,  
            in a physically nonintrusive manner.  (Id. at p. 215.)  
            From the perspective of some law enforcement agencies, using a  
            UAS to view private property from a public vantage point is  
            akin to giving the police a better set of eyes and would not  
            violate the Fourth Amendment.  But unlike the police in  
            Ciraolo who rented a private plane and flew it 1,000 above  
            ground, law enforcement's use of UAS is potentially much more  
            invasive, because a UAS can hover at very low altitudes and  
            capture detailed photos and videos of activities on the  
            ground.  



            This bill proposes to require law enforcement agencies to  
            create a detailed UAS policy and vet that policy with the  
            public before deploying UAS to fight crime.  
           9)The Fourth Amendment and new technologies .  The U.S.  
            Constitution and the California Constitution guarantee the  
            right of all persons to be secure from unreasonable searches  
            and seizures.  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.  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.)





            Similarly, 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.)

            As technology evolves, the Legislature must consider how new  
            technologies should be used in a way that carefully balances  
            the need for public safety against the right to personal  








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            privacy.  The Court's decisions in Kyllo and Jones provide  
            some clues as to how courts may ultimately rule on the extent  
            of law enforcement's use of drones.  Eventually, the courts  
            may rule that the use of drones to conduct surveillance  
            without a warrant is restricted by the Fourth Amendment.  But  
            until a case rises to the 9th Circuit or the U.S. Supreme  
            Court, any restrictions on the use of UAS by law enforcement  
            and other public agencies are left up to the Legislature and  
            local governments.   





           10)California local government action on UAS  .  Several local  
            governments in California are considering allowing law  
            enforcement to use UAS in their jurisdictions.  For example,  
            on April 8, 2015, the San Jose Neighborhoods Commission  
            endorsed a 12-month pilot project allowing the San Jose police  
            department to test UAS.  The San Jose City Council is expected  
            to approve the pilot project, which would begin in 2017.  
            ("Controversial Police Drone Inches Closer To Flight In San  
            Jose," San Jose Mercury News, April 9, 2015.) 



            In 2014, the Los Angeles (L.A.) Police Department acquired two  
            UAS from the Seattle Police Department.  Following public  
            criticism, the L.A. City Council called on the L.A. Police  
            Commission to develop a policy on the use of UAS before LAPD  
            deploys them.  The city's policy is still in development.  
            ("LAPD's 2 Drones Will Remain Grounded During Policy Review,  
            Police Commission Says Amid Protest," KTLA5, September, 14,  
            2014; and "LA City Council Instructs LAPD, Commission, To  
            Create Drone-Use Criteria," ABC7, October 28, 2014.) 



            In 2013, the Alameda County Sheriff's Department purchased two  








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            UAS using the Department's own funds and without public notice  
            or approval from the Alameda County Board of Supervisors.   
            ("Alameda County Sheriff Reveals that He's Bought 2 Drones,"  
            S.F. Gate (Dec. 3, 2014). 

           11)The Governor's veto of AB 1327 (Gorell)  .  In 2014, the  
            Legislature passed AB 1327 (Gorell), which would have required  
            all law enforcement agencies to obtain a search warrant before  
            any use of UAS, except for certain emergencies.  However, AB  
            1327 was vetoed by the Governor on the grounds that the  
            exceptions for emergencies were too narrowly drafted. In his  
            veto message, Governor Brown stated: 



            "This bill prohibits law enforcement from using a drone  
                                                                                 without obtaining a search warrant, except in limited  
            circumstances. There are undoubtedly circumstances where a  
            warrant is appropriate.  The bill's exceptions, however,  
            appear to be too narrow and could impose requirements beyond  
            what is required by either the 4th Amendment or the privacy  
            provisions in the California Constitution."

           12)Arguments in support  .  California Civil Liberties Advocacy  
            (CCLA) writes in support, "CCLA strongly feels that AB 1820  
            properly balances the privacy interests of individual citizens  
            with law enforcement's need to detect, prevent, and prosecute  
            crime by requiring sound usage and data retention policies,  
            and by requiring law enforcement to obtain a search warrant in  
            connection with footage obtained for a criminal  
            investigation."



           13)Arguments in opposition  .  The California State Sheriff's  
            Association states, "[W]e must oppose the provisions that  
            would require ? policies before the legislative body with  
            "jurisdiction" over the law enforcement agency? The state  
            Legislature should not mandate the method in which law  








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            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 supervisors can be  
            considered the governing body of the office of the elected  
            sheriff - would be conducive to creating appropriate policies  
            and procedures."  

            The American Civil Liberties Union of California (ACLU)  
            contends that police should not use UAS without a warrant,  
            stating that, "Drones represent a revolutionary new technology  
            that has the potential to be a useful law enforcement tool but  
            which also creates serious new threats to privacy that must be  
            subject to the controls of a search warrant.  As the Supreme  
            Court noted with respect to thermal imaging, '[w]here ? the  
            Government uses a device ? 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.' In Kyllo v. United States  
            (2001) 533 U.S. 27, 40."  ACLU also states, "[T]he  
            public-notice provision is so negligible as to be irrelevant  
            because it does no more than to require the agencies create  
            policies that are made available to the public."



           14)Related legislation  .  AB 56 (Quirk) regulates the use of UAS  
            by public agencies, including law enforcement.  AB 56 passed  
            the Assembly on a 61-12 vote and is pending on the Senate  
            Inactive File.

            SB 262 (Galgiani) would have authorized a law enforcement  
            agency to use a UAS if it complied with the U.S. Constitution  
            and the California Constitution, federal law applicable to the  
            use of UAS by a law enforcement agency, state law applicable  
            to a law enforcement agency's use of surveillance technology  
            that can be attached to a UAS, and provided the local  
            governing board approved the use.  SB 262 was held in the  
            Senate Judiciary Committee.   









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            SB 868 (Jackson) proposes the State Remote Piloted Aircraft  
            Act containing numerous UAS regulations.  SB 868 is pending  
            before the Senate Public Safety Committee.



           15)Prior legislation  .  SB 15 (Padilla) of 2013 would have  
            imposed a search warrant requirement on law enforcement agency  
            use of a UAS in certain circumstances, would have applied  
            existing civil and criminal law to prohibited activities with  
            devices or instrumentalities affixed to, or contained within a  
            UAS, and would have prohibited equipping a UAS with a weapon,  
            and would have prohibited using a UAS to invade a person's  
            privacy.  SB 15 failed passage in the Assembly Public Safety  
            Committee.

           16)Double-referral  .  This bill was double-referred to the  
            Assembly Public Safety Committee, where it was heard on March  
            15, 2015, and passed on a 7-0 vote. 





           17)Reconsideration  .  This bill was heard by this Committee on  
            April 19, 2016, and failed passage on a 4-6 vote.  The author  
            requested and was granted reconsideration where it will heard  
            for vote only on April 21, 2016. 
          REGISTERED SUPPORT / OPPOSITION:




          Support









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          California Civil Liberties Advocacy (CCLA)


          Central Coast Forest Association 


          Opposition


          ACLU


          California Peace Officers' Association (CPOA)


          California State Sheriffs' Association
          Consumer Federation of California 
          Consumer Watchdog


          Peace Officers Research Association of California (PORAC)


          Privacy Rights Clearinghouse


          Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)  
          319-2200
















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