BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 741|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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UNFINISHED BUSINESS
Bill No: SB 741
Author: Hill (D), et al.
Amended: 8/31/15
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
SENATE FLOOR: 39-0, 5/22/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Hall, Hancock,
Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno,
Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach,
Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone,
Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 79-0, 9/2/15 - See last page for vote
SUBJECT: Mobile communications: privacy
SOURCE: Author
DIGEST: This bill establishes requirements that local agencies
must fulfill before acquiring cellular communications
interception technology.
Assembly Amendments (1) modify the requirements that a local
agency's usage and privacy policy must fulfill; (2) specify that
an adopted ordinance or resolution must authorize the
acquisition, but not the use of, cellular communications
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interception technology; and (3) allow a county sheriff to
acquire cellular communications interception technology after
providing public notice, as specified, rather than after the
adoption of an authorizing resolution.
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
telephone or other cellular radio telephone.
This bill:
1)Requires every local agency that operates cellular
communications interception technology to do both of the
following:
a) Maintain reasonable security procedures and practices,
including operational, administrative, technical, and
physical safeguards, in order to protect information
gathered through the use of cellular communications
interception technology from unauthorized access,
destruction, use, modification, or disclosure.
b) Implement a usage and privacy policy to ensure that the
collection, use, maintenance, sharing, and dissemination of
information and data 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. 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
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information using that technology.
ii) A description of 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 must
identify the training requirements necessary for those
authorized employees.
iii) A description of how the agency will monitor its use
of cellular communications interception technology to
ensure the accuracy of the information collected and
compliance with all applicable laws.
iv) 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.
v) 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.
vi) The length of time information 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
retained information.
2)Prohibits a local agency, with the exception of a county
sheriff, from acquiring cellular communications interception
technology unless the agency's legislative body adopts an
authorizing resolution or ordinance at a regularly scheduled
meeting held pursuant to the Ralph M. Brown Act.
3)Prohibits a county sheriff from acquiring cellular
communications interception technology unless the sheriff
provides public notice of the acquisition, which must be
posted conspicuously on his or her department's Internet Web
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site, and his or her department has a usage and privacy
policy, as specified in this bill.
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.
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."
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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
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
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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
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 allows members of the public and their
elected representatives to make informed decisions about law
enforcement's deployment of surveillance technology in their
communities.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified9/2/15)
Bay Area Civil Liberties Coalition
California Civil Liberties Advocacy
Media Alliance
Small Business California
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OPPOSITION: (Verified9/2/15)
None received
ASSEMBLY FLOOR: 79-0, 9/2/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Beth Gaines
Prepared by: Brian Weinberger / GOV. & F. / (916) 651-4119
9/2/15 16:00:43
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