BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 741| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 741 Page 2 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 SB 741 Page 3 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 SB 741 Page 4 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." SB 741 Page 5 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 SB 741 Page 6 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 SB 741 Page 7 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 **** END ****