BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 741| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 741 Author: Hill (D), et al. Amended: 5/19/15 Vote: 21 SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 4/15/15 AYES: Hertzberg, Nguyen, Bates, Beall, Hernandez, Lara, Pavley SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SUBJECT: Mobile communications: privacy SOURCE: Author DIGEST: This bill prohibits a local agency from acquiring or using cellular communications interception technology without first adopting a resolution or ordinance and imposes specified requirements on any local agency that uses cellular communication interception technology. ANALYSIS: Existing law, with some exceptions for law enforcement agencies, 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 SB 741 Page 2 telephone or other cellular radio telephone. This bill: 1)Requires every local agency that operates cellular communications interception technology to do all of the following: a) 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. b) Implement and maintain reasonable security procedures and practices in order to protect information and data gathered through the use of cellular communications interception technology from unauthorized access, destruction, use, modification, or disclosure. c) Implement and maintain a usage and privacy policy in order to ensure that the collection, use, maintenance, sharing, and dissemination of information and data gathered through the use of cellular communications interception technology is consistent with respect for an individual's privacy and civil liberties. This usage and privacy policy must be available in writing, and, if the local agency has an Internet Web site, the usage and privacy policy must be posted conspicuously on that Internet Web site. The usage and privacy policy must include: i) The authorized purposes for using cellular communications interception technology and for collecting information or data using that technology. ii) A description of the employees who are authorized to use, or access information or data SB 741 Page 3 collected through the use of, cellular communications interception technology. The policy must identify the training requirements necessary for those authorized employees. iii) A description of how the use of cellular communications interception technology will be monitored to ensure compliance with all applicable privacy laws and a process for periodic system audits. iv) 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. v) A description of how the local agency will comply with its specified security procedures and practices. vi) The length of time information or data gathered through the use of cellular communications interception technology will be stored or retained, and the process the local agency will utilize to determine if and when to destroy stored or retained information or data. vii) 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. viii)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. SB 741 Page 4 2)Prohibits a local agency from acquiring or using cellular communications interception technology unless the agency's legislative body adopts an authorizing resolution or ordinance. 3)Requires the authorizing resolution or ordinance adopted by a local agency to: a) 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; and b) Set forth the local agency's usage and privacy policy, as specified. 4)Specifies that, in addition to any other sanctions, penalties, or remedies provided by law, an individual who has been harmed by a violation of this bill's provisions may bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation. 5)Allows a court to award a combination of any one or more of the following: a) Actual damages, but not less than liquidated damages in the amount of $2,500. b) Punitive damages upon proof of willful or reckless disregard of the law. c) Reasonable attorney's fees and other litigation costs reasonably incurred. SB 741 Page 5 d) Other preliminary and equitable relief as the court determines to be appropriate. Background 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' 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 SB 741 Page 6 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. Comments 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 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 SB 741 Page 7 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, this bill requires that a law enforcement agency that acquires or uses an IMSI catcher must disclose information about the policies that govern how the agency will use the device and the data gathered by the device. This bill doesn't prohibit any law enforcement agency from obtaining or using IMSI catchers. This 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. 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, this bill 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified5/19/15) Bay Area Civil Liberties Coalition Media Alliance Small Business California SB 741 Page 8 OPPOSITION: (Verified5/19/15) California Police Chiefs Association California State Sheriffs' Association ARGUMENTS IN SUPPORT: > ARGUMENTS IN OPPOSITION: > Prepared by:Brian Weinberger / GOV. & F. / (916) 651-4119 5/21/15 11:46:42 **** END ****