Amended in Assembly June 24, 2015

Amended in Senate May 19, 2015

Senate Bill No. 741

Introduced by Senator Hill

(Coauthors: Senators Anderson and Leno)

February 27, 2015

An act to add Article 11 (commencing with Section 53166) to Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code, relating to communications.

LEGISLATIVE COUNSEL’S DIGEST

SB 741, as amended, Hill. Mobile communications: privacy.

Existing law makes it a crime to manufacture, assemble, sell, advertise for sale, possess, transport, import, or furnish to another a device that is primarily or exclusively designed or intended for eavesdropping upon the communication of another, or any device that is primarily or exclusively designed or intended for the unauthorized interception of reception of communications between a cellular radio telephone, as defined, and a landline telephone or other cellular radio telephone. Existing law additionally makes it a crime to purchase, sell, offer to purchase or sell, or conspire to purchase or sell, any telephone calling pattern record or list, without the written consent of the subscriber, or to procure, obtain, attempt to obtain, or conspire to obtain, any calling pattern record or list through fraud or deceit. Existing law contains certain exemptions from these crimes for law enforcement agencies.

This bill would require every local agency that operates cellular communications interception technology, as defined, to begin delete (1) ensure that information and data gathered through use of that technology is protected with reasonable operational, administrative, technical, and physical safeguards to ensure its confidentiality and integrity, (2) implement and end delete maintain reasonable begin delete security procedures and practices in order end delete begin insert operational, administrative, technical, and physical safeguards end insert to protect information begin delete and data end delete gathered through use of the technology from unauthorized access, destruction, use, modification, or begin delete disclosure, end delete begin insert disclosure end insert and begin delete (3) end delete implement begin delete and maintain end delete a usage and privacy policy, as specified, to ensure that the collection, use, maintenance, sharing, and dissemination of information begin delete and data end delete gathered through use of the technology begin insert complies with applicable law and end insert is consistent with respect for an individual’s privacy and civil liberties. The bill would prohibit a local agency from acquiring or using cellular communications interception technology unless that acquisition or use is approved by a resolution or ordinance adopted by its legislature body at a regularly scheduled public meeting of the legislative body at which members of the public are afforded a reasonable opportunity to comment. The bill would require that the resolution or ordinance set forth the policies of the local begin delete agency as described above in (1), (2), and (3). end delete begin insert agency. end insert The bill would require that the local agency make the usage and privacy policy available in writing begin insert to the public end insert and if the local agency maintains an Internet Web site, to conspicuously post the usage and privacy policies on that site. The bill would, in addition to any other sanctions, penalties, or remedies provided by law, authorize an individual who has been harmed by a violation of these provisions to bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Article 11 (commencing with Section 53166) is
added to Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code, to read:

 

Article 11.  Cellular Communications Interception

 

53166.  

(a) For purposes of this article, the following terms
have the following meanings:

(1) “Cellular communications interception technology” means
any device that intercepts mobile telephony calling information
or content, including an international mobile subscriber identity
catcher or other virtual base transceiver station that masquerades
as a cellular station and logs mobile telephony calling information.

(2) “Local agency” means any city, county, city and county,
special district, authority, community redevelopment agency, or
other political subdivision of the state, and includes every county
sheriff and city police department.

(b) Every local agency that operates cellular communications
interception technology shall do begin delete all end delete begin insert both end insert of the following:

begin delete

(1) Ensure that information and data gathered through the use
of cellular communications interception technology is protected
with reasonable operational, administrative, technical, and physical
safeguards to ensure its confidentiality and integrity.

end delete begin delete

(2) Implement and maintain

end delete

begin insert (1) end insert begin insert   end insert begin insert Maintain end insert reasonable security procedures and begin delete practices in
order end delete begin insert practices, including operational, administrative, technical,
and physical safeguards, end insert to protect information begin delete and data end delete gathered
through the use of cellular communications interception technology
from unauthorized access, destruction, use, modification, or
disclosure.

begin delete

(3)

end delete

begin insert (2) end insert  Implement begin delete and maintain end delete a usage and privacy policy begin delete in order end delete
to ensure that the collection, use, maintenance, sharing, and
dissemination of information begin delete and data end delete gathered through the use of
cellular communications interception technology begin insert complies with
all applicable law and end insert is consistent with respect for an individual’s
privacy and civil liberties. This usage and privacy policy shall be
available in begin delete writing, end delete begin insert writing to the public, end insert and, if the local agency
has an Internet Web site, the usage and privacy policy shall be
posted conspicuously on that Internet Web site. The usage and
privacy policy shall, at a minimum, include all of the following:

(A) The authorized purposes for using cellular communications
interception technology and for collecting information begin delete or data end delete
using that technology.

(B) A description of the begin insert job title or other designation of the end insert
employees who are authorized to use, or access information begin delete or
data end delete collected through the use of, cellular communications
interception technology. The policy shall identify the training
requirements necessary for those authorized employees.

(C) A description of how the begin insert local agency will monitor its own end insert
use of cellular communications interception technology begin delete will be
monitored end delete to ensure begin insert the accuracy of the information collected and end insert
compliance with all applicable begin delete privacy laws and a process for
periodic end delete begin insert laws, including laws providing for process and time period end insert
system audits.

begin delete

(D) A description of reasonable measures that will be used to
ensure the accuracy of information or data gathered through the
use of cellular communications interception technology and a
process to correct errors.

(E) A description of how the local agency will comply with the
security procedures and practices implemented and maintained
pursuant to paragraph (2).

end delete begin insert

(D) The existence of a memorandum of understanding or other
agreement with another local agency or any other party for the
shared use of cellular communications interception technology or
the sharing of information collected through its use, including the
identity of signatory parties.

end insert begin insert

(E) The purpose of, process for, and restrictions on, the sharing
of information gathered through the use of cellular communications
interception technology with other local agencies and persons.

end insert

(F) The length of time information begin delete or data end delete gathered through the
use of cellular communications interception technology will be
begin delete stored or end delete retained, and the process the local agency will utilize to
determine if and when to destroy begin delete stored or end delete retained begin delete information
or data. end delete begin insert information. end insert

begin delete

(G) The official custodian, or owner, of information or data
gathered through the use of cellular communications interception
technology and which employees have the responsibility and
accountability for implementing this subdivision.

(H) The purpose of, and process for, sharing or disseminating
information or data gathered through the use of cellular
communications interception technology with other persons. The
policy shall also identify how the use or further sharing or
dissemination of that information or data will be restricted in order
to ensure respect for an individual’s privacy and civil liberties.

end delete

(c) No local agency may acquire or use cellular communications
interception technology unless approved by its legislative body by
begin delete adoption end delete begin insert adoption, at a regularly scheduled public meeting with
an opportunity for public comment, end insert of a resolution or ordinance
authorizing that acquisition or begin delete use. end delete begin insert end insert begin insert use and the usage and privacy
policy required by this section. end insert

begin delete

(d) The legislative body of a local agency shall not approve a
resolution or ordinance authorizing the acquisition or use of cellular
communications interception technology, unless the resolution or
ordinance is adopted at a regularly scheduled public meeting of
the legislative body at which members of the public are afforded
a reasonable opportunity to comment upon the proposed resolution
or ordinance. The resolution or ordinance shall set forth the policies
of the local agency as required by paragraph (3) of subdivision
(b).

end delete begin delete

(e)

end delete

begin insert (d) end insert  In addition to any other sanctions, penalties, or remedies
provided by law, an individual who has been harmed by a violation
of this section may bring a civil action in any court of competent
jurisdiction against a person who knowingly caused that violation.
The court may award a combination of any one or more of the
following:

(1) Actual damages, but not less than liquidated damages in the
amount of two thousand five hundred dollars ($2,500).

(2) Punitive damages upon proof of willful or reckless disregard
of the law.

(3) Reasonable attorney’s fees and other litigation costs
reasonably incurred.

(4) Other preliminary and equitable relief as the court determines
to be appropriate.