BILL ANALYSIS Ó
SB 741
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Date of Hearing: July 15, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
SB
741 (Hill) - As Amended June 24, 2015
SENATE VOTE: 39-0
SUBJECT: Mobile communications: privacy.
SUMMARY: Prohibits a local agency from acquiring or using
cellular communications interception technology, unless approved
by its legislative body, and requires that local agency to
implement a usage and privacy policy for the use of cellular
communications interception technology. Specifically, this
bill:
1)Prohibits a local agency from acquiring or using cellular
communications interception technology, unless approved by its
legislative body by adoption, at a regularly scheduled public
meeting with an opportunity for public comment, of a
resolution or ordinance authorizing that acquisition or use
and the usage and privacy policy required by the bill's
provisions.
2)Requires every local agency that operates cellular
communications interception technology to do both of the
following:
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a) Maintain reasonable security procedures and practices,
including operational, administrative, technical, and
physical safeguards, to protect information gathered
through the use of cellular communications interception
technology from unauthorized access, destruction, use,
modification, or disclosure; and,
b) Implement a usage and privacy policy to ensure that the
collection, use, maintenance, sharing, and dissemination of
information gathered through the use of cellular
communications interception technology complies with all
applicable law and is consistent with respect for an
individual's privacy and civil liberties.
3)Requires the usage and privacy policy to be available in
writing to the public, and, if the local agency has an
Internet Web site, requires the usage and privacy policy to be
posted conspicuously on that Internet Web site.
4)Requires the usage and privacy policy to, at a minimum,
include all of the following:
a) The authorized purposes for using cellular
communications interception technology and for collecting
information using that technology;
b) A description of the job title or other designation of
the employees who are authorized to use, or access
information collected through the use of, cellular
communications interception technology. The policy shall
identify the training requirements necessary for those
authorized employees;
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c) A description of how the local agency will monitor its
own use of cellular communications interception technology
to ensure the accuracy of the information collected and
compliance with all applicable laws, including laws
providing for process and time period system audits;
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;
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; and,
f) The length of time information gathered through the use
of cellular communications interception technology will be
retained, and the process the local agency will utilize to
determine if and when to destroy retained information.
5)Allows, in addition to any other sanctions, penalties, or
remedies provided by law, an individual who has been harmed by
a violation of the bill's provisions to bring a civil action
in any court of competent jurisdiction against a person who
knowingly caused that violation. Allows the 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;
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b) Punitive damages upon proof of willful or reckless
disregard of the law;
c) Reasonable attorney's fees and other litigation costs
reasonably incurred; and,
d) Other preliminary and equitable relief as the court
determines to be appropriate.
6)Defines the following terms:
a) "Cellular communications interception technology" to
mean 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.
b) "Local agency" to mean 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.
EXISTING LAW:
1)Declares, pursuant to the California Constitution, that people
have the right of access to information concerning the conduct
of the people's business, and, therefore, the meetings
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of public bodies and the writings of public officials and
agencies shall be open to public scrutiny.
2)Requires, pursuant to the Ralph M. Brown Act (Brown Act), that
all meetings of the legislative body of a local agency be open
and public, and that all persons be permitted to attend any
meeting of the legislative body of a local agency, except as
otherwise provided.
3)Provides that ordinances may only be passed at a regular
meeting or at an adjourned regular meeting, except as
specified for urgency ordinances, and prescribes the
procedures for publication of ordinances within 15 days after
passage by the local agency.
FISCAL EFFECT: None.
COMMENTS:
1)Bill Summary. This bill requires local agencies to approve
the acquisition or use of cellular communications interception
technology at a public hearing before deploying it, and
requires local agencies to develop and release a usage and
privacy policy for this technology. The bill is an
author-sponsored measure.
2)Author's Statement. According to the author, "Residents
should be made aware of what type of surveillance technology
law enforcement agencies use within their community.
Residents should also be able to participate in a public
process to decide whether or not those surveillance
technologies should be used in their communities and if
adopted, how the technology should be used."
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"Current law, however, does not guarantee this for the use of
cell phone intercept technology by local law enforcement
agencies. Throughout the state, local governments and law
enforcement agencies have been adopting the use of cell phone
intercept technology without providing an opportunity for
community input.
"The technology, which can be used to mimic a cell phone tower
and intercept cell phone information, including locational
data, is growing more common. According to the most recent
data, at least 11 local jurisdictions in California have
purchased the technology. None of the local governments have
allowed public input or adopted publicly available policies
governing the use of the cell phone tracking technology."
3)Background. What this bill calls "cellular communications
interception technology" or CCIT is more commonly referred to
elsewhere as an "international mobile subscriber identity
(IMSI) catcher" or a "StingRay," which is a brand name for a
particular line of cell site emulator.
CCIT is a portable cell phone surveillance tool used by
government agencies at the federal, state and local levels
that generally consists of an antenna, a processor, and laptop
computer for analysis and configuration. They work by
emulating the operation of a cellular telephone network tower,
which prompts nearby cell phones to switch over and
communicate with it like it was the carrier's nearest base
station.
The CCIT can be used to collect a variety of data about "caught"
cell phones, particularly the phone's unique numeric
identifier and its physical location. According to the
American Civil Liberties Union (ACLU), CCIT is generally used
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for two purposes: First, if the government knows a suspect's
location, it can use CCIT to determine the unique numeric
identifier association with the cell phone. Having this
number can facilitate the government's efforts to obtain a
wiretap or call records on the target of an investigation.
Second, if the government has the unique numeric identifier,
it can determine the phone's geographic location, often with
an accuracy of up to two meters. CCIT can also be used to
capture the content of communications (like voice calls and
text messages), although the ACLU does not provide evidence
that the local law enforcement agencies have done so with any
frequency.
According to an ACLU study, at least 34 law enforcement
agencies in 15 states have purchased CCIT. The technology is
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. There is also evidence
to suggest that the Santa Clara County Board of Supervisors
authorized its Sheriff's Office in February 2015 to purchase
CCIT as well.
4)Policy Considerations. The Committee may wish to consider
the following:
a) Local Agencies that are Already Using this Technology.
Since there are a number of local law enforcement agencies
already using this technology, the author may wish to
consider making it explicit in the bill that these agencies
must also adopt a usage and privacy policy and approve the
acquisition and usage of this technology at a regularly
scheduled meeting, since the provisions of the bill, if
chaptered, will not take effect until January 1, 2016.
b) Resolution vs. Ordinance. The bill allows a local
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agency to approve the acquisition or use of cellular
communications interception technology with either a
resolution or an ordinance. Resolutions do not have the
force of law within the jurisdiction but are merely
expressions of opinion of evidence of a decision made by
the body and often related to the administrative business
of the municipality. Also, the procedures for adopting
resolutions are not as strict as the procedures for
adopting ordinances, and in general, the requirement to
publish the ordinance within 15 days after passage in a
newspaper of general circulation does not apply to
resolutions. The Committee may wish to consider whether
the usage and privacy policy and acquisition and usage of
this technology should be an act adopted via ordinance,
instead of by a resolution.
c) Technical and Clarifying Amendments. The Committee may
wish to consider the following technical changes:
i) RDAs. The bill's definition of "local agency"
includes community redevelopment agencies, and should be
struck from the definition.
ii) Use of Technology. Language in subdivision (c) of
the bill could be interpreted to require approval each
time a local agency wishes to use the technology. The
Committee may wish to strike out "or use" from that
subdivision, which would mean that the legislative body
would only need to authorize the acquisition of the
technology and adopt the required usage and privacy
policy required by the bill.
iii) Brown Act Cross Reference. Instead of requiring a
local agency to acquire and use this technology at a
regularly scheduled public meeting with an opportunity
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for public comment, as the bill specifies, the Committee
may wish to consider inserting the appropriate cross
reference to the Brown Act, as follows:
(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. held pursuant to the
Ralph M. Brown Act (commencing with Government Code 54950
et seq).
5)Arguments in Support. Media Alliance writes that this bill
protects the rights of residents suspected of no crime,
supports the vulnerable, including those too often unfairly
targeted by law enforcement, and improves police-community
relations with transparency and public process.
6)Arguments in Opposition. The California State Sheriffs'
Association writes that this measure will unduly interfere
with the ability of independently elected constitutional
officers to deploy the latest technology when investigation
and prosecuting criminals, and will set a potentially
dangerous precedent by alerting criminal enterprises of a
specific type of technology that would be deployed by a
sheriff's department.
7)Double-Referral. This bill was heard by the Privacy and
Consumer Protection Committee on June 23, 2015, where it
passed with an 11-0 vote.
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REGISTERED SUPPORT / OPPOSITION:
Support
Bay Area Civil Liberties Coalition
California Civil Liberties Advocacy
Media Alliance
Small Business California
Opposition
California Police Chiefs Association
California State Sheriffs' Association
Analysis Prepared by:Debbie Michel / L. GOV. / (916)
319-3958
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