BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 741|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   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  








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          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  







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                  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.







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          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.








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             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  







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          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  







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            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







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          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


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