BILL ANALYSIS Ó
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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