BILL ANALYSIS Ó SB 424 Page 1 Date of Hearing: July 7, 2015 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Mike Gatto, Chair SB 424 (Pan) - As Amended April 21, 2015 SENATE VOTE: 35-0 SUBJECT: Law enforcement: communications SUMMARY: Authorizes university and college peace officers to overhear or record conversations in sexual assault investigations as other law enforcement officials do, and authorizes their use of body-worn cameras generally. Specifically, this bill: 1)Clarifies that existing restrictions on electronic surveillance do not prohibit any Police Officer Standardized Training (POST)-certified chief of police, assistant chief of police, or police officer of a university or college campus acting within the scope of his or her authority, from overhearing or recording any communication that he or she could lawfully overhear or record in any criminal investigation related to sexual assault or other sexual offense. 2)Clarifies that existing restrictions on electronic SB 424 Page 2 surveillance do not prohibit any POST-certified chief of police, assistant chief of police, or police officer of a university or college campus from using or operating body-worn cameras. 3)Clarifies that these provisions do not affect the existing statutory authority for law enforcement acting within the scope of its authority to overhear or record any communication, as specified. 4)Declares that these provisions may not be used to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly, or the constitutionally protected right of personal privacy. EXISTING LAW: 1)Declares the intent of the Legislature to protect the right of privacy of the people of California and recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques to investigate criminal conduct. (Penal Code (PC) Section 630) 2)Generally prohibits wiretapping, eavesdropping, and using electronic devices to record or amplify a confidential communication, and further provides that any evidence so obtained is inadmissible in any judicial, administrative, or legislative proceeding. (PC 631, 632, 632.5, 632.6, and 632.7.) 3)Authorizes one party to a confidential communication to record SB 424 Page 3 the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of the law against obscene, threatening, or annoying phone calls, and further provides that any evidence so obtained is admissible in a prosecution for such crimes. (PC 633.5) 4)Provides that, notwithstanding prohibitions on eavesdropping and other surveillance techniques, upon the request of a victim of domestic violence who is seeking a domestic violence restraining order, a judge issuing the order may include a provision in the order that permits the victim to record any prohibited communication made to him or her by the perpetrator. (PC 633.6) 5)Exempts the Attorney General, any district attorney, specified peace officers such as city police and county sheriffs, and a person acting under the direction of an exempt agency from the prohibitions against wiretapping and other related activities to the extent that they may overhear or record any communication that they were lawfully authorized to overhear or record prior to the enactment of the prohibitions, and further provides that any evidence so obtained is admissible in any judicial, administrative, or legislative proceeding. (PC 633) 6)Limits the authority of a member of the California State University (CSU) Police Department to the CSU campuses, an area within one mile of the exterior boundaries of each campus, and other CSU owned or operated properties. (Education Code (EDUC) Section 89560) SB 424 Page 4 7)Limits the authority of a member of the University of California (UC) Police Department to the UC campuses, an area within one mile of the exterior boundaries of each campus, and other properties owned or operated by the Regents of the UC. (EDUC 92600) FISCAL EFFECT: None. This measure has been keyed nonfiscal by the Legislative Counsel. COMMENTS: 1)Purpose of this bill . This bill is intended to clarify that college and university law enforcement officers may overhear or record conversations as other law enforcement officials might as part of a criminal investigation of a sexual offense, and may also utilize body-worn cameras for any lawful purpose. SB 424 is sponsored by the California College and University Police Chiefs Association. 2)Author's statement . According to the author, existing law "allows sworn officers to record the statements of suspects without notifying them, which would otherwise be prohibited under state wiretapping laws. This is most often utilized during suspect interviews/interrogations, in-car recordings of suspects in custody, and in a pretext phone call situation. A pretext phone call is the recording of a conversation between a victim and a known suspect arranged by law enforcement to gain admissions or other incriminating statements. This technique provides some of the best evidence in cases of date rape and other crimes involving no independent witnesses." "Unfortunately, POST certified officers who protect campuses such as the California State University and University of SB 424 Page 5 California systems were not among those [authorized], while virtually all other police entities in the state were included. The exact cause of this omission is difficult to ascertain, however, it is clear today that college and university law enforcement entities need the ability to obtain these recordings as dictated by their investigations. Not only does this omission undermine effective law enforcement, it has the effect of prohibiting use of Body Worn Cameras by college and university officers in some circumstances." "In addition to crimes like active shooter and sexual assault, college and university police agencies deal with the same array of criminal activity that takes place in a non-campus environment. Campuses are not cocooned bubbles and criminal activity truly knows no jurisdictional boundaries. Over the most recent two year period, there were nearly six thousand serious crimes committed on our campuses. These crimes, which are required to be reported pursuant to the Clery Act, include murder, manslaughter, sexual assaults, robbery, aggravated assaults, burglary, vehicle thefts and arson." "College and University police agencies meet the same POST requirements of city police and county sheriffs; they face the same law enforcement challenges. They should have the same tools with which to address those challenges." 3)Arguments in support . According to the sponsor, the California College and University Police Chiefs Association, "SB 424 does two things: It allows sworn, POST-certified college and university police agencies to record statements of suspects in the investigation of campus sexual assault and sexual offense cases. Sadly, sexual assaults take place disproportionately on college and university campuses. Further, it is estimated that the perpetrator is known to the victim 80% of the time. As amended, SB 424 will enable college and university police agencies to do "pretext" calls between the victim and the alleged perpetrator. These provisions were discussed and agreed to by the Council of SB 424 Page 6 University of California Faculty Associations." "Second, SB 424 makes clear that body worn cameras may be used by sworn POST certified college and university police agencies. The California College and University Police Chiefs Association embraces the concept of body worn cameras and believes they will constitute a major advancement in the continued professionalism of police services. Ironically, however, current law prohibits those officers from using body worn cameras. SB 424 will rectify that statutory glitch and permit the use of body worn cameras by sworn POST certified college and university police agencies." 4)Related Legislation. AB 65 (Alejo) redirects funds from the Driver Training Penalty Assessment Fund and allocates that money to the Board of State and Community Corrections to be used to fund local law enforcement agencies to operate a body-worn camera program. AB 65 was held on the Suspense File in the Assembly Appropriations Committee. AB 66 (Weber) establishes mandatory requirements and recommended guidelines for the use of body-worn cameras by peace officers and the handling of the resulting video and audio data. AB 66 passed this Committee on a 6-0 vote, and was held in the Assembly Appropriations Committee. AB 69 (Rodriguez) specifies a set of best practices that a law enforcement agency, department or entity establishing policies and procedures for the implementation and operation of a body-worn camera system must consider. AB 69 passed this Committee on an 11-0 vote, and is set for hearing in the Senate Public Safety Committee on July 14, 2015. SB 424 Page 7 AB 1246 (Quirk) prohibits the disclosure of a recording made by a body-worn camera, except to the person whose image is recorded by the body worn camera. AB 1246 was held in the Assembly Public Safety Committee. SB 178 (Leno) creates the California Electronic Communications Privacy Act (CalECPA), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. SB 178 passed this Committee on a 9-0 vote, and is set for hearing in the Assembly Public Safety Committee on July 14, 2015. 5)Previous legislation . AB 992 (Spitzer), of 2005, would have authorized UC peace officers and CSU peace officers to overhear or record communications in any criminal investigation related to a sex assault or other sexual offense. AB 992 failed passage in the Senate Public Safety Committee. AB 1884 (Spitzer), of 2004, would have authorized city attorneys prosecuting misdemeanor consumer cases to record or overhear communications in the same manner as other law enforcement officials. This bill was vetoed by Governor Schwarzenegger, stating that "[i]f an investigation is of sufficient importance as to merit electronic eavesdropping, a city attorney may seek the cooperation and assistance of those agencies which have the authority to do so." 6)Double-referral . This bill was double-referred to the Assembly Public Safety Committee, where it was heard on June 30, 2015, and passed out on a 7-0 vote. REGISTERED SUPPORT / OPPOSITION: SB 424 Page 8 Support California College and University Police Chiefs Association (SPONSOR) Opposition None on file. Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200