BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 262 (Galgiani)
Version: April 20, 2015
Hearing Date: May 12, 2015
Fiscal: No
Urgency: No
TH
SUBJECT
Unmanned Aircraft Systems: Law Enforcement Use
DESCRIPTION
This bill would authorize law enforcement agencies to use
unmanned aircraft systems provided such use complies with
certain conditions, including: search and seizure protections in
the U.S. and California Constitutions; federal law applicable to
unmanned aircraft systems; and state law applicable to law
enforcement agency use of surveillance technology. This bill
would also require law enforcement agencies to receive approval
from their local governing body prior to using unmanned aircraft
systems, and would restrict the use of such systems for
conducting surveillance of private property.
BACKGROUND
The development of small unmanned aircraft systems (UAS) - known
variously as "unmanned aerial vehicles," "remote piloted
aircraft," or simply "drones" - promises to transform the way
Californians interact with each other and their environment.
Just a few decades ago, small aircraft of this type were the
exclusive domain of hobbyists. Within the last decade or so,
the public has become familiar with the military's use of
unmanned aircraft to accomplish certain mission objectives.
However, in December 2013 when Amazon.com, FedEx, and UPS
announced their plans to integrate unmanned aircraft into their
logistics and delivery services, the possibility of widespread
adoption of this technology became clear.
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Along with a variety of businesses, law enforcement agencies
across the country are also starting to look at how to leverage
unmanned aerial vehicle technology. According to one report:
As drones become cheaper and more capable, more police
departments across the country are asking for and getting
federal approval to use them for law enforcement. But the
Federal Aviation Administration only takes safety into
consideration when it grants a law enforcement agency approval
to use drones, leaving privacy protections to
legislation-which, depending on the state in question, may or
may not exist. Agencies as large as the Michigan State Police
and as small as the Grand Forks County [N.D.] Sheriff's
Department have received FAA approval to use drones. Most
departments use them for missions like search-and-rescue or
for photographing a crime scene or an accident site. But
unless a law enforcement agency is within one of the 14 states
that have passed privacy legislation limiting how police can
use drones, there's little in theory keeping it from using a
drone for a less innocuous end-such as surveillance without a
warrant. (Kaveh Waddell, Few Privacy Limitations Exist on How
Police Use Drones, National Journal (Feb. 5, 2105)
[as of May 6, 2015].)
At present, the use of unmanned aerial vehicles of any kind in
the skies over California is fairly restricted. Congress
effectively closed the national airspace to commercial drone use
in the Federal Aviation Administration (FAA) Modernization and
Reform Act of 2012.<1> That Act established a framework for
safely integrating unmanned aircraft into the national airspace
no later than September 30, 2015. The Act does, however, permit
certain commercial unmanned aircraft operations to take place
before the integration framework is implemented. Section 333 of
the Act authorizes the Secretary of Transportation to establish
special interim requirements for the operation of these aircraft
by designated operators, provided the aircraft and their
---------------------------
<1> H.R. 658, 112th Congress (2011-2012). In general, the FAA
is tasked with regulating aircraft operations conducted in the
national airspace under 49 U.S.C. Sec. 40103. This authority
extends to unmanned aircraft operations, which, by definition,
are considered to be "aircraft." (See 49 U.S.C. Sec.
40102(a)(6), which defines an "aircraft" as "any contrivance
invented, used, or designed to navigate, or fly in, the air.")
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operators meet certain minimum standards and have applied for a
commercial use exemption. To date, a handful of commercial
operators have applied for, and received, permission to fly
commercial drones, including several film production companies,
construction, surveying, and inspection companies, and a number
of real estate firms. The Act also sets out a separate interim
operation exemption for "public unmanned aircraft," allowing
public agencies like police departments to operate drones upon
application, provided the aircraft and their operators meet
certain minimum standards.<2> According to recent media
reports, several California law enforcement agencies and other
public entities have acquired drones, but very few - if any -
have put them into service.
This bill would authorize a law enforcement agency to use
unmanned aircraft systems in California, provided the agency
complies with protections against unreasonable search and
seizures guaranteed by the California and federal constitutions,
federal law pertaining to UAS operation, and state law
pertaining to law enforcement use of surveillance technology.
This bill would require a law enforcement agency to receive
approval from its local governing body, and to create written
policies governing UAS use and employee training, before using
UAS technology. This bill would also prohibit law enforcement
agency use of UAS technology for conducting surveillance of
private property unless the agency has obtained a search warrant
or written permission from the affected landowner, or in the
case of exigent circumstances.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, provides that all
people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy. (Cal.
Const, art. I, Sec. 1.)
Existing federal and state law provide 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
---------------------------
<2> See Section 334 of the FAA Modernization and Reform Act of
2012.
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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., 4th Amend.; Cal. Const, art. I,
Sec. 13.)
Existing federal law provides that the Federal Aviation
Administration shall regulate aircraft operations conducted in
the national airspace, including unmanned aircraft operations.
(49 U.S.C. Sec. 40103; 49 U.S.C. Sec. 40102(a)(6).)
Existing law makes it a crime for any person to intentionally
and without the consent of all parties to a confidential
communication, by means of any electronic amplifying or
recording device, eavesdrop 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. (Pen. Code Sec. 632.)
Existing law provides that any person who trespasses on property
for the purpose of committing any act, or attempting to commit
any act, in violation of the above provision shall be punished
by a fine not exceeding two thousand five hundred dollars
($2,500), by imprisonment in the county jail not exceeding one
year or in the state prison, or by both that fine and
imprisonment. (Pen. Code Sec. 634.)
Existing law provides that no person or entity in this state
shall use an electronic tracking device to determine the
location or movement of a person, but also provides that this
section shall not apply to the lawful use of an electronic
tracking device by a law enforcement agency. (Pen. Code Sec.
637.7.)
This bill would state that a law enforcement agency may use an
unmanned aircraft system if the use of the unmanned aircraft
system complies with all of the following:
protections against unreasonable searches guaranteed by the
United States Constitution and the California Constitution;
federal law applicable to the use of an unmanned aircraft
system by a law enforcement agency, including, but not limited
to, regulations of the Federal Aviation Administration; and
state law applicable to a law enforcement agency's use of
surveillance technology that can be attached to an unmanned
aircraft system, including, but not limited to, Chapter 1.5
(commencing with Section 630) of Title 15 of Part 1 of the
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Penal Code.
This bill would provide that before a law enforcement agency may
use an unmanned aircraft system, it must first:
receive approval from its local governing body to use an
unmanned aircraft system; and
create a written policy on the use of an unmanned aircraft
system and has trained the individuals using the unmanned
aircraft system on the policy.
This bill would specify that a law enforcement agency shall not
use an unmanned aircraft system to conduct surveillance of
private property unless any of the following apply:
the law enforcement agency has obtained a search warrant;
the person or entity with the legal authority to grant access
to the private property grants the law enforcement agency
written consent to access the property; or
an exigent circumstance exists.
COMMENT
1.Stated need for the bill
The author writes:
This legislation simply applies what is currently required by
the Fourth Amendment of the U.S. Constitution to the use of
unmanned aircraft. This allows for the utilization of
plausible vantage points, in compliance with the Fourth
Amendment. SB 262 applies privacy regulations that are
currently applied to manned aircraft to unmanned aircraft.
Because public property is the quintessential "plausible
vantage point," an observation of evidence that could have
been seen from a public place is not a search, and therefore
should not require a warrant. Also, [this bill] will require
approval of a local legislative body prior [to] the use of a
UAS. The local body will also be required to create policies
and training regarding the use of a drone.
Last year, Assembly Bill 1327 (2014) required the acquisition
of a warrant for UAS use over both public and private land in
most instances. This bill, however, was vetoed by the
Governor. In his veto message, Governor Brown stated that
although there are undoubtedly circumstances where a warrant
is appropriate, the bill's exceptions appear to be too narrow
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and could impose requirements beyond what is required by
either the 4th Amendment or the privacy provisions in the
California Constitution.
A search warrant for the use of electronic aerial visual
surveillance, enabled by an unmanned or manned aircraft, is
not required if an aircraft or UAS is flown in accordance with
FAA regulations and the aircraft or UAS is not flown in a
physically intrusive manner. The test as to whether or not a
warrant is required is if officers utilized technology that
merely permitted them to see things they could have seen from
a plausible vantage point, although less clearly and with
somewhat more effort. Nor is a warrant . . . required merely
because a surveillance device was "sophisticated" or
technologically complex.
2.Fundamental Right to Privacy
The California Constitution provides that all people have
inalienable rights, including the right to pursue and obtain
privacy. (Cal. Const., art. I, Sec. 1.) This "right of privacy
is vitally important. It derives, in this state, not only from
the protections against unreasonable searches and seizures
guaranteed by the Fourth Amendment and article I, section 13,
but also from article I, section 1, of our State Constitution.
Homage to personhood is the foundation for individual rights
protected by our state and national Constitutions." (In re
William G. (1985) 40 Cal.3d 550, 563.) Because of their
inherent maneuverability and the ease with which they may enter
spaces infeasible for manned aircraft, the growth of unmanned
aerial vehicle technology presents a challenge to maintaining
traditional boundaries that separate public and private spheres,
and to preserving the fundamental right to privacy in
California.
California's constitutional right to privacy restricts the
government and others from infringing upon legally protected
privacy interests of California residents. The California
Supreme Court has found that "[l]egally recognized privacy
interests are generally of two classes: (1) interests in
precluding the dissemination or misuse of sensitive and
confidential information (informational privacy); and (2)
interests in making intimate personal decisions or conducting
personal activities without observation, intrusion, or
interference (autonomy privacy). (Hill v. National Collegiate
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Athletic Assn. (1994) 7 Cal.4th 1, 35 [internal quotation marks
omitted].) The latter of these - informational privacy - is
"the core value" furthered by the constitutional right of
privacy. (Id.) "A particular class of information is private
when well-established social norms recognize the need to
maximize individual control over its dissemination and use to
prevent unjustified embarrassment or indignity. Such norms
create a threshold reasonable expectation of privacy in the data
at issue." (Id.) The Court has held that "the usual sources of
positive law governing the right to privacy -- common law
development, constitutional development, [and] statutory
enactment"-- illuminate "[w]hether established social norms
safeguard a particular type of information . . . from public or
private intervention." (Id. at 36.)
Recent Fourth Amendment jurisprudence strongly suggests that
information subject to collection by unmanned aircraft operated
by law enforcement agencies, such as locational information and
surveillance data, falls within the class of information
safeguarded by established social norms. In United States v.
Jones (2012) 132 S. Ct. 945, for example, the U.S. Supreme Court
examined the significant privacy concerns raised by locational
tracking technology. The Jones case considered whether the
attachment of a Global Positioning System (GPS) tracking device
to an individual's vehicle, and the subsequent use of that
device to track the vehicle's movements on public streets,
constituted a search within the meaning of the Fourth Amendment.
In her concurring opinion, Justice Sotomayor made the following
observations:
Awareness that the Government may be watching chills
associational and expressive freedoms. And the Government's
unrestrained power to assemble data that reveal private
aspects of identity is susceptible to abuse. The net result
is that GPS monitoring--by making available at a relatively
low cost such a substantial quantum of intimate information
about any person whom the Government, in its unfettered
discretion, chooses to track--may alter the relationship
between citizen and government in a way that is inimical to
democratic society.
I would take these attributes of GPS monitoring into account
when considering the existence of a reasonable societal
expectation of privacy in the sum of one's public movements.
I would ask whether people reasonably expect that their
movements will be recorded and aggregated in a manner that
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enables the Government to ascertain, more or less at will,
their political and religious beliefs, sexual habits, and so
on. (United States v. Jones (2012) 132 S. Ct. 945, 955-956
[internal citations and quotation marks omitted].)
Use of unmanned aircraft to track the location of individuals
and gather surveillance data is arguably more invasive than GPS
tracking of a vehicle's movements on public streets. Unlike GPS
tracking, unmanned aircraft can collect data on a wide range of
individuals at the same time, and in areas far removed from
public streets. As the Electronic Frontier Foundation notes in
its opposition letter:
Small, surreptitious drones can have significant surveillance
capacity and can collect data not only about law enforcement
targets, but also other persons in a potentially large area,
ranging from the drone flight path to crowds at lawful
protests. Such expansive surveillance must be justified to a
court on a probable cause standard and carefully cabined in
order to protect non-targets from unjustified surveillance.
Similarly, the American Civil Liberties Union of California
(ACLU), in opposition, notes that "because they are small,
quiet, maneuverable, and capable of remaining airborne for long
periods, drones allow for surreptitious surveillance that has
never before been achievable. This new type of data collection
raises privacy concerns not only for the target of the search,
but also for third parties who may be impacted by the operation
of drones."
This bill seeks to provide some regulation of unmanned aircraft
system (UAS) use by law enforcement, stating that such use must
comply with California and federal search and seizure
requirements as well as Penal Code provisions related to
specific forms of electronic monitoring. However, these
provisions alone may not give law enforcement agencies guidance
to ensure that the use of UAS technology does not violate the
constitutional right to privacy. As the ACLU notes:
[this] bill states only that law enforcement must comply with
the state and federal constitutions, federal law, regarding
the use of unmanned aircraft systems, and state law regarding
surveillance technology. This statement is unnecessary and
unhelpful. Police are of course already required to conduct
searches in accordance with constitutional requirements, and
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otherwise comply with federal and state law.
Unfortunately, this bill leaves unanswered many important policy
questions regarding drone use that go beyond mere compliance
with existing law. What protections, for example, should be put
in place to ensure the privacy of bystanders who are monitored
because of their proximity to an intended surveillance target?
What additional protections are needed to ensure that law
enforcement use of UAS technology on or near private property
does not violate the fundamental right to privacy? Should law
enforcement use of drones be authorized only for specific
purposes? Should the weaponization of drones be permitted?
What kind of public oversight should be put in place to ensure
that drones are used in a manner that respects civil liberties?
The addition of "privacy" to the list of unalienable rights in
the California Constitution "was intended to strengthen the
right of privacy, "and "[t]he elevation of the right to be free
from invasions of privacy to constitutional stature was
apparently intended to be an expansion of the [existing] privacy
right." (Cent. Valley Ch. 7th Step Found. v. Younger
(Cal.App.1st Dist. 1989) 214 Cal.App.3d 145, 160.) "[The]
principal 'mischiefs' at which the amendment is directed are:
(1) 'government snooping' and the secret gathering of personal
information; (2) the overbroad collection and retention of
unnecessary personal information by government and business
interests; (3) the improper use of information properly obtained
for a specific purpose, for example, the use of it for another
purpose or the disclosure of it to some third party; and (4) the
lack of a reasonable check on the accuracy of existing records."
(Id.) The policy question for this Committee to consider is,
without more, does this bill provide enough guidance to law
enforcement agencies to avoid the "mischiefs" the privacy
amendment sought to curtail?
3.Data Use and Security
As discussed in Comment 2, the type of information collected
through the use of an unmanned aircraft system (UAS) could be
highly sensitive. For example, locational data gathered by a
UAS, especially over time, can be used to determine the owner's
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political and religious beliefs, known associates, frequented
places, and even their medical conditions. Other recent bills
regulating law enforcement's use of surveillance technologies
considered by this Committee have included provisions addressing
security and operational protocols to ensure that collected data
remains confidential and is protected from unauthorized access
or use. (See e.g. Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 34 (2015-2016 Reg. Sess.) as introduced, [for hearing on
Apr. 14, 2015].) However, the bill does not impose any direct
requirements to ensure that collected data is protected from
misuse or data breach, or that the permissible use of collected
data is restricted by appropriate safeguards to ensure respect
for individual privacy and civil liberties.
Insufficient data security and use protocols for UAS collected
information may risk infringing upon an individual's
constitutional right to privacy in much the same way as improper
"front-end" collection practices. Under this bill, law
enforcement agencies will be confronted with determining such
things as what purposes images, footage, or data obtained
through the use of a UAS should be used for, whether this
information should be used for purposes other than that for
which they were originally collected, and whether it should be
shared with other public and private entities. Similarly, law
enforcement agencies will have to determine how such information
should be protected from misuse or improper access, whether this
information should be subject to set retention periods, and who
should have access to it. The policy question for this
Committee to consider is whether the Legislature ought to
provide more direct guidance to law enforcement agencies faced
with these critical issues of data security and privacy
protection.
Support : Association for Los Angeles Deputy Sheriffs;
Association of Deputy District Attorneys; California Association
of Code Enforcement Officers; California College and University
Police Chiefs Association; California Correctional Supervisors
Organization; California District Attorneys Association;
California Narcotic Officers Association; California Peace
Officers' Association; California State Lodge, Fraternal Order
of Police; CSAC Excess Insurance Authority; Long Beach Police
Officers Association; Los Angeles County Professional Peace
Officers Association; Los Angeles Police Protective League;
Riverside Sheriffs Association; Sacramento County Deputy
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Sheriffs' Association; Santa Ana Police Officers Association
Opposition : American Civil Liberties Union of California;
Electronic Frontier Foundation; Legal Services for Prisoners
with Children
HISTORY
Source : California Police Chiefs Association
Related Pending Legislation :
SB 170 (Gaines, 2015) would provide that a person who knowingly
and intentionally operates an unmanned aircraft system below
"navigable airspace," as defined in federal law, overlaying a
state prison is guilty of a misdemeanor, except as specified.
This bill would also double existing fines and penalties for
unlawfully using an unmanned aircraft system to deliver
contraband to, or communicate with, an inmate of a prison or
jail. This bill is pending in the Senate Appropriations
Committee.
SB 142 (Jackson, 2015) would clarify that the operation of an
unmanned aerial vehicle below the navigable airspace overlying
the property of another, or less than 350 feet above the
property of another, without permission constitutes trespass.
This bill would also provide that using such a vehicle in
trespass to capture images or recordings of individuals engaged
in personal or familial activities constitutes physical invasion
of privacy. This bill is awaiting referral in the Assembly
Rules Committee.
SB 271 (Gaines, 2015) would make it an infraction to operate an
unmanned aircraft on or above the grounds of a public school
providing instruction in kindergarten or grades 1 to 12 during
school hours and without permission of school officials. This
bill would exempt specified media and news personnel unless they
receive a request from school officials to cease using an
unmanned aircraft above a school, and would also exempt law
enforcement. This bill is pending on the Senate Floor.
AB 14 (Waldron, 2015) would create the Unmanned Aircraft Systems
Task Force, which would be required to research, develop, and
formulate a comprehensive policy for unmanned aircraft systems
in California. The task force would be required to submit,
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among other things, a policy draft and suggested legislation
pertaining to unmanned aircraft systems to the Legislature and
the Governor on or before January 1, 2018. This bill is pending
reconsideration in the Assembly Transportation Committee.
AB 56 (Quirk, 2015) would prohibit public agencies from using
unmanned aircraft systems, or contracting for the use of these
systems, with certain exceptions for law enforcement agencies
acting pursuant to a warrant and in certain other cases,
including when the use or operation of the unmanned aircraft
system achieves the core mission of the agency and the purpose
for use is unrelated to the gathering of criminal intelligence.
The bill would also require notice by public agencies intending
to deploy unmanned aircraft, would require images, footage, or
data obtained through the use of such aircraft to be permanently
destroyed within one year except as specified, and would
prohibit equipping unmanned aircraft with weapons. This bill is
pending in the Assembly Appropriations Committee.
Prior Legislation :
AB 1327 (Gorell, 2014) would have prohibited public agencies
from using unmanned aircraft systems, or contracting for the use
of these systems, with certain exceptions for law enforcement
agencies acting pursuant to a warrant and in certain other
cases, including when the use or operation of the unmanned
aircraft system achieves the core mission of the agency and the
purpose of use is unrelated to the gathering of criminal
intelligence. The bill would have also required notice by
public agencies intending to deploy unmanned aircraft, would
have required images, footage, or data obtained through the use
of such aircraft to be permanently destroyed within one year
except as specified, and would have prohibited equipping
unmanned aircraft with weapons. This bill was vetoed by
Governor Brown.
SB 15 (Padilla, 2013) would have, among other things, required
law enforcement agencies to obtain search warrants when using
unmanned aircraft, and would have required that an application
for the search warrant specify the intended purpose for which
the unmanned aircraft would be used. The bill would have also
restricted data collection by unmanned aircraft and would have
prohibited equipping unmanned aircraft with weapons. This bill
died in the Assembly Public Safety Committee.
AB 1524 (Waldron, 2013) would have required any entity that owns
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or operates an unmanned aircraft to place identifying
information or digitally store identifying information on the
aircraft. The bill would have exempted model aircraft, and
would have made a person or entity that violates its provisions
liable for a civil fine not to exceed $2,500. This bill was set
for hearing in the Assembly Transportation Committee, but the
hearing was cancelled at the author's request.
Prior Vote : Senate Public Safety Committee (Ayes 5, Noes 1)
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