BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |SB 741 |Hearing | 4/15/15 |
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|Author: |Hill |Tax Levy: |No |
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|Version: |2/27/15 |Fiscal: |No |
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|Consultant|Weinberger |
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CELLULAR COMMUNICATION INTERCEPTION TECHNOLOGY
Prohibits a local agency from acquiring or using cellular
communications interception technology without first adopting a
resolution or ordinance that meets specified criteria.
Background and Existing Law
Some California sheriff's offices and police departments are
using surveillance devices that allow investigators to gather
cellphone signals to pinpoint a suspect's location. By
simulating a cellular communications tower's functions, these
devices force all cell phones within the vicinity to transmit
information to the devices. The information that these devices
can collect reportedly includes a cell phone's number, a phone's
unique "International Mobile Subscriber Identification" (IMSI)
number, its electronic serial number, the location of the most
recent cell tower the phone connected with, and phone numbers
dialed from the cell phone. Some reports indicate that the
devices can accurately identify a cell phone's location, even if
the phone is turned off, and could be modified to capture the
content of calls or text messages from a phone. These devices
are known as "IMSI catchers" and sometimes referred to by brand
names like "StingRay" or "HailStorm."
Exact information about how IMSI catchers work and what they can
do is difficult to obtain. Local law enforcement agencies'
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acquisition and use of these devices is apparently subject to
non-disclosure requirements that, according to various sources,
are imposed by the devices' manufacturer, the Federal Bureau of
Investigation, or both, to prevent the release of information
that could compromise the devices' effectiveness. Public
information requests for documents relating to the devices are
either denied or reveal only heavily-redacted materials. Some
news reports indicate that local law enforcement authorities
even refuse to reveal information about IMSI catchers to elected
officials who are considering whether to approve the acquisition
and use of the devices by a sheriff or police department.
IMSI catchers are reportedly used by at least 11 local law
enforcement agencies in California including Alameda County, Los
Angeles County, the City of Los Angeles, Sacramento County, San
Bernardino County, the City of San Diego, the City and County of
San Francisco, and the City of San Jose. On February 24, 2015,
the Santa Clara County Board of Supervisors authorized the
Sheriff's Office to use funding from the State Homeland Security
Grant Program to procure a "mobile phone triangulation system,"
presumably an IMSI catcher.
The secrecy surrounding this technology raises substantial
unanswered questions about the privacy and civil liberties
implications of these devices, particularly because IMSI
catchers collect information from the phones of anyone in the
devices' vicinity, not just individuals targeted by law
enforcement.
Some local officials want the public to have more information
about the use of cellular communication surveillance devices in
their communities.
Proposed Law
Senate Bill 741 prohibits a local agency from acquiring or using
cellular communications interception technology unless the
agency's legislative body adopts an authorizing resolution or
ordinance. The authorizing resolution or ordinance must:
Be 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;
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Set forth the local agency's policies as to the
circumstances when cellular communications interception
technology may be employed; and,
Set forth usage and privacy policies, which must include
how data obtained through use of the technology is to be
used, protected from unauthorized disclosure, and disposed
of once it is no longer needed.
SB 741 defines "cellular communications interception technology"
as 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.
SB 741 defines "local agency" as any city, county, city and
county, special district, authority, community redevelopment
agency, or other political subdivision of the state, including
every county sheriff and city police department.
The bill requires that the cellular communications interception
technology usage and privacy policies must be posted
conspicuously on an agency's Internet Web site, if the Agency
maintains an Internet Web site.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Because of the non-disclosure
agreements that law enforcement officials have used to justify
the secrecy surrounding IMSI catchers, the public and their
elected representatives know very little about this technology.
Some of the unanswered questions about IMSI catchers raise
fundamental civil liberty and privacy concerns that deserve to
be considered by the public. Important questions that merit
public consideration include:
What data is gathered from the phones of third-parties
who are unrelated to the purpose for which an IMSI catcher
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is deployed? Is that data stored for any period of time?
Who can access it? How is it used? Is it secured against
unauthorized access?
Can IMSI catchers be modified to capture voice and text
content from cell phones? Can law enforcement agencies
determine whether the devices are being used to capture
content, regardless of whether such use is authorized by
the department?
What policies govern local law enforcement agencies'
deployment and use of IMSI catchers? To what extent do
agencies comply with those policies?
Must local law enforcements agencies' use of IMSI
catchers always be subject to a warrant issued by a judge?
Do warrants specifically allow for the collection of data
from every cell phone that transmits to the devices?
To get answers to some of the above questions, SB 741 would
require that a law enforcement agency that acquires or uses an
IMSI catcher must disclose a modest amount of information about
the policies that govern how the agency will use the device and
the data gathered by the device. SB 741 doesn't prohibit any
law enforcement agency from obtaining or using IMSI catchers.
The bill simply allows members of the public and their elected
representatives to make informed decisions about law
enforcement's deployment of surveillance technology in their
communities.
2. Local control . County sheriffs are elected officials.
Because they are directly accountable to the public, they should
be allowed to make independent decisions about procuring and
deploying law enforcement technology to reflect local needs and
priorities. State-imposed restrictions on certain types of
technology undermine a sheriff's ability to use his or her
discretion to enforce the law and maintain public safety. By
making it more difficult for sheriffs to use IMSI catchers, SB
741 may compel them to use alternative technologies that may be
less effective and result in higher investigative costs. Those
decisions may be more appropriately left up to sheriffs and the
voters who elect them.
3. Not far enough . Some civil liberties advocates suggest that
SB 741 may not go far enough. They suggest that SB 741's public
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disclosure requirements, which allow the public to consider and
comment upon local IMSI policies, are an insufficient response
to this problematic surveillance technology. Instead, they want
legislators to consider statewide standards that will address
some of the broader privacy and unreasonable search issues
raised by IMSI catchers.
4. Double-referred . The Senate Rules Committee has ordered a
double-referral of SB 741 --- first to the Senate Governance &
Finance Committee which has policy jurisdiction over state laws
relating to local governments, and then to the Senate Judiciary
Committee.
Support and
Opposition (4/9/15)
Support : Bay Area Civil Liberties Coalition; California
Newspaper Publishers Association; Small Business California.
Opposition : Citizens for Criminal Justice Reform - California.
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