Amended in Assembly April 8, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2468

Introduced by Assembly Member Donnelly

February 21, 2014

An act to add Section begin delete 143 end delete begin insert 1524.8 end insert to the Penal Code, relating to begin delete airport security end delete begin insert search warrants end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 2468, as amended, Donnelly. begin delete Airport security: offenses. end delete begin insert Search warrants: privacy. end insert

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Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things, and the place to be searched.

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Existing federal law authorizes, except as specified, the Attorney General of the United States and Director of National Intelligence to authorize, for a period of up to one year, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information. Existing federal law authorizes the Director of the Federal Bureau of Investigation, or his or her designee, to make an application for an order requiring the production of any tangible things, as specified, for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

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This bill would prohibit a state agency, political subdivision of the state, or officer or employee thereof, or a corporation providing services on behalf of the state or a political subdivision from providing services to, or utilizing any assets, state funds, or funds allocated by the state to local entities to engage in activities that aid a federal agency, federal agent, or corporation providing services to the federal government involved in the collection of electronic data or metadata of any person pursuant to an action not based on a valid warrant, as specified. The bill would also prohibit those entities from providing material support, participation, or assistance to a federal agency or pursuant to federal law that purports to authorize the collection of that same data without a valid warrant.

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The bill would establish specified penalties for violations of its provisions, including withholding state grant funds from a political subdivision of the state that adopts an ordinance, resolution, or policy in violation of the provisions described above.

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This bill would provide that its provisions are severable.

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Existing law makes it a misdemeanor for a public officer, or person pretending to be a public officer, under the pretense or color of any process or other legal authority, to take specified actions without a regular process or other lawful authority, including arresting or detaining a person against his or her will.

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This bill would prohibit a public servant, acting under color of his or her office or employment, as part of a determination of whether to grant a person access to a publicly accessible venue or form of transportation, from intentionally and without probable cause operating body imaging scanning equipment either in direct contact with a passenger, pilot, or crew member, or from remotely viewing images captured through the operation of that equipment. The bill would make a violation of its provisions an infraction punishable by a fine of $1,000 for each violation. The bill would also define “public servant” and “body imaging scanning equipment” for those purposes. By creating a new crime, the bill would impose a state-mandated local program.

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This bill would provide that its provisions are severable.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete yes end delete begin insert no end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 1524.8 is added to the end insert begin insert Penal Code end insert begin insert , to
read: end insert

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begin insert 1524.8. end insert   

(a) It is the policy of the state to refuse to provide
material support, participation, or assistance to a federal agency,
or pursuant to a federal law, rule, regulation, or order, that
purports to authorize the collection of electronic data or metadata
of a person pursuant to an action not based on a warrant that is
issued upon probable cause and that particularly describes the
persons, places, and things to be searched or seized.

(b) Notwithstanding any law, rule, regulation, or order, a state
agency, political subdivision of the state, or officer or employee
thereof acting in his or her official capacity, or corporation
providing services on behalf of the state or a political subdivision
of the state shall not do any of the following:

(1) Provide, in any form, material support, participation, or
assistance to a federal agency, or pursuant to a federal law, rule,
regulation, or order, that purports to authorize the collection of
electronic data or metadata of a person pursuant to an action not
based on a warrant that is issued upon probable cause and that
particularly describes the persons, places, and things to be
searched or seized.

(2) Utilize any assets, state funds, or funds allocated by the state
to local entities on or after January 1, 2015, in whole or in part,
to engage in an activity that aids a federal agency, federal agent,
or corporation providing services to the federal government in the
collection of electronic data or metadata of a person pursuant to
an action not based on a warrant that is issued upon probable
cause and that particularly describes the persons, places, and
things to be searched or seized.

(3) Provide services, or participate or assist in any way in
providing services, to a federal agency, federal agent, or
corporation providing services to the federal government that is
involved in the collection of electronic data or metadata of any
person pursuant to an action not based on a warrant that is issued
upon probable cause and that particularly describes the persons,
places, and things to be searched or seized.

(4) Use in a criminal investigation or prosecution any
information provided by a federal agency, federal agent, or
corporation providing services to the federal government that was
obtained through the collection of electronic data or metadata of
any person pursuant to an action not based on a warrant that is
issued upon probable cause and that particularly describes the
persons, places, and things to be searched or seized.

(c) The Attorney General may bring an action in court to enforce
this section.

(d) (1) (A) State grant funds shall be withheld from a political
subdivision of the state that adopts an ordinance, resolution, or
policy in violation of subdivision (b) during the first full fiscal year
immediately following the year in which a final judicial
determination is made that the political subdivision has violated
subdivision (b) in an action brought under this section.

(B) For purposes of this paragraph, “state grant funds” means
funds that are awarded to a political subdivision of the state
pursuant to a state grant program.

(2) An officer or employee of the state or a political subdivision
of the state who is found to have violated subdivision (b) in a final
judicial determination shall be deemed to have resigned from his
or her office or employment, and he or she shall thereafter be
ineligible to serve in any public office or public employment within
this state.

(3) A corporation providing services on behalf of the state or
a political subdivision of the state that is found to have violated
subdivision (b) in a final judicial determination shall be ineligible
to provide services on behalf of, or provide services to, the state
or a political subdivision of the state.

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begin insert SEC. 2. end insert   

end insert begin insert

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

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SECTION 1.  

Section 143 is added to the Penal Code, to read:

143.  

(a) A public servant acting under color of his or her office
or employment shall not, as part of a determination of whether to
grant a person access to a publicly accessible venue or form of
transportation, intentionally and without probable cause operate
body imaging scanning equipment either in direct contact with a
passenger, pilot, or crew member, or remotely view images
captured through the operation of that equipment.

(b) For purposes of this section, the following definitions shall
apply:

(1) “Body imaging scanning equipment” means equipment that
uses either backscatter technology, millimeter wave technology,
or any other technology that produces an image with equal or
increased level of anatomical detail of the image created by
backscatter and millimeter wave technologies.

(2) “Public servant” means a person who is any of the following:

(A) An officer, employee, or agent of the United States; a
branch, department, or agency of the United States; or another
person acting under contract with a branch, department, or agency
of the United States to provide security or law enforcement
services.

(B) Another person acting under color of federal law.

(c) Violation of this section is an infraction punishable by a fine
of one thousand dollars ($1,000) for each violation.

(d) This section shall be construed to be enforceable up to, but
no further than, the maximum possible extent consistent with
federal constitutional requirements, even if that construction is not
readily apparent. Alternative constructions are authorized only to
the extent necessary to save the statute from judicial invalidation.

SEC. 2.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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