BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 741|
          |Office of Senate Floor Analyses   |                              |
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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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