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SB-21 Law enforcement agencies: surveillance: policies.(2017-2018)

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Date Published: 05/26/2017 10:00 AM
SB21:v93#DOCUMENT

Amended  IN  Senate  May 26, 2017
Amended  IN  Senate  May 03, 2017
Amended  IN  Senate  April 17, 2017
Amended  IN  Senate  March 23, 2017
Amended  IN  Senate  March 14, 2017
Amended  IN  Senate  March 07, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 21


Introduced by Senator Hill
(Coauthor: Senator Bradford)

December 05, 2016


An act to add Chapter 15 (commencing with Section 54999.8) to Part 1 of Division 2 of Title 5 of the Government Code, relating to law enforcement agencies.


LEGISLATIVE COUNSEL'S DIGEST


SB 21, as amended, Hill. Law enforcement agencies: surveillance: policies.
Under existing law, a city or county is empowered to perform duties including providing for public safety and law enforcement. A city or county is authorized, either directly or indirectly, to prescribe policies and regulations for law enforcement agencies under its jurisdiction.
This bill would, beginning July 1, 2018, require each public law enforcement agency, as defined, to submit to its governing body at a regularly scheduled hearing, open to the public, a proposed Surveillance Use Policy for the use of each type of surveillance technology and the information collected, as specified. The bill would require the public law enforcement agency to cease using the surveillance technology within 30 days if the proposed plan is not adopted. The bill would require that the public law enforcement agency to submit an amendment to the surveillance plan, pursuant to the same open meeting requirements, for each new type of surveillance technology sought to be used. The bill would require the policy and any amendments to be posted on the agency’s Internet Web site. The bill would also require the agency to make specified reports, at approved intervals, concerning the use of surveillance technology, and to make those reports available on the agency’s Internet Web site. The bill would prohibit a public law enforcement agency from selling, sharing, or transferring information gathered by surveillance technology, except to another public law enforcement agency, as permitted by law and the terms of the Surveillance Use Policy. The bill would provide specified penalties, in addition to any other remedies under law, for violations of these provisions, including punitive damages, attorney’s fees, and injunctive relief. The bill would authorize an agency to temporarily use surveillance technology during exigent circumstances, as specified, without meeting the requirements of these provisions, provided that, among other things, the agency submits a specified report to its governing body within 45 days of the end of the exigent circumstances.
The bill would establish separate procedures for the Department of the California Highway Patrol and the Department of Justice to establish their own Surveillance Use Policies, instead of submitting them through their governing body. The procedures would include holding a noticed public hearing on the proposed policy, posting the policy on the department’s Internet Web site, amending the policy to include new types of surveillance technology, and publishing a biennial report regarding the department’s use of surveillance technology, as specified.
The bill would make legislative findings in support of these provisions.
Because this bill would impose additional requirements on local public agencies, it would impose a state-mandated local program.
The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect.
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.
This bill would provide that, with regard to certain mandates, no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) While law enforcement agencies increasingly rely on surveillance technologies because those technologies may enhance community safety and aid in the investigation of crimes, those technologies are often used without any written rules or civilian oversight, and the ability of surveillance technology to enhance public safety should be balanced with reasonable safeguards for residents’ civil liberties and privacy.
(b) Promoting a safer community through the use of surveillance technology while preserving the protection of civil liberties and privacy are not mutually exclusive goals, and policymakers should be empowered to make informed decisions about what kind of surveillance technologies should be used in their community.
(c) Decisions about whether to use surveillance technology for data collection and how to use and store the information collected should not be made by the agencies that would operate the technology, but by the elected bodies that are directly accountable to the residents in their communities who should also have opportunities to review the decision of whether or not to use surveillance technologies.

SEC. 2.

 Chapter 15 (commencing with Section 54999.8) is added to Part 1 of Division 2 of Title 5 of the Government Code, to read:
CHAPTER  15. Surveillance Policies for Law Enforcement

54999.8.
 The following definitions apply for purposes of this chapter:
(a) “Exigent circumstances” means a law enforcement agency’s good faith belief that an emergency involving danger of death or serious physical injury to any person requires use of a surveillance technology or the information it provides.
(b) “Governing body” means the elected or appointed body that oversees the public law enforcement agency or the public law enforcement agency’s corresponding geographic area in the case of a county sheriff.

(c)“Public agency” includes any agency employing peace officers, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code.

(c) “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, and the Department of Justice.
(d) (1) “Surveillance technology” means any electronic device or system with the capacity to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group. This includes, but is not limited to, drones with cameras or monitoring capabilities, automated license plate readers, closed-circuit cameras/televisions, International Mobile Subscriber Identity (IMSI) trackers, global positioning system (GPS) technology, radio frequency identification (RFID) technology, biometric identification technology, and facial recognition technology.
(2) “Surveillance technology” does not include standard public agency computers and software, fingerprint scanners, ignition interlock devices, cellular telephones, two-way radios, or other similar electronic devices.

54999.85.
 (a) (1) On Except as provided in paragraph (4), on or before July 1, 2018, a public law enforcement agency that uses, or accesses information from, surveillance technology shall submit to its governing body a Surveillance Use Policy to ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. The policy shall be in writing and made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
(2) The governing body, at a regularly scheduled hearing pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), shall consider the policy for adoption by resolution or ordinance on the regular, nonconsent calendar and shall provide an opportunity for public comment before adopting the resolution or ordinance.
(3) If a submitted Surveillance Use Policy is not adopted by resolution or ordinance by the governing body, the public law enforcement agency shall cease use of surveillance technologies within 30 days of the hearing and until the time that a Surveillance Use Policy is adopted.
(4) On or before July 1, 2018, the Department of Justice and the Department of the California Highway Patrol shall hold a properly noticed public hearing and provide an opportunity for public comment before adopting a Surveillance Use Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. The policy shall be in writing and shall be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
(b) The policy shall pertain to any surveillance technologies already in use or relied upon for information by the public law enforcement agency and shall include, in separate sections specific to each unique type of surveillance technology, a description of each surveillance technology used or relied upon for information by the public law enforcement agency. Each section covering a separate technology shall, at a minimum include the following:
(1) Authorized purposes for using the surveillance technology.
(2) Types of data that can be and is collected by the surveillance technology.
(3) A description of the job title or other designation of employees and independent contractors who are authorized to use the surveillance technology or to access data collected by the surveillance technology. The policy shall identify and require training for those authorized employees and independent contractors.
(4) Title of the official custodian, or owner, of the surveillance technology responsible for implementing this section.
(5) A description of how the surveillance technology will be monitored to ensure the security of the information and compliance with applicable privacy laws.
(6) The length of time information gathered by the surveillance technology will be retained, and a process to determine if and when to destroy retained information.
(7) Purposes of, process for, and restrictions on the sale, sharing, or transfer of information to other persons and whether, if so, how the collected information can be accessed by members of the public, including criminal defendants.
(8) A process to maintain a record of access of the surveillance technology or information collected by the surveillance technology. At a minimum, the record shall include all of the following:
(A) The date and time the technology is used or the information is accessed.
(B) The data elements the employee used to query the information.
(C) The username of the employee who uses the technology or accesses the information, and, as applicable, the organization or entity with whom the person is affiliated.
(D) The purpose for accessing the information or using the technology.
(9) The existence of a memorandum of understanding or other agreement with another local agency or any other party, whether or not formalized, for the shared use of the surveillance technology or the sharing of the information collected through its use, including the identity of the parties.
(c) (1) After Except as provided in paragraph (4), after July 1, 2018, if a public law enforcement agency intends to acquire a new type of surveillance technology after the adoption of the policy required by subdivision (a), the agency shall submit an amendment to the policy to include the new type of technology as a new section of the policy and submit the amendment to its governing body for approval consistent with subdivision (a).
(2) Except as provided in Section 54999.95, the amendment shall be submitted prior to requesting funds for acquiring, using, or accessing information from the technology and shall be submitted to the governing body at a properly noticed public meeting on the regular, nonconsent calendar and the governing body shall provide an opportunity for public comment before adopting the amendment.
(3) The amendment shall be in writing and made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption. The governing body has 30 days to consider an amendment. If a submitted amendment is not adopted by the governing body, the public law enforcement agency shall not request funds for, acquire, use, or access information from the new surveillance technology.
(4) (A) After July 1, 2018, if the Department of Justice or the Department of the California Highway Patrol intends to acquire a new type of surveillance technology after the adoption of the policy required by subdivision (a), that agency shall draft an amendment to the policy to include the new type of technology as a new section of the policy. That agency shall hold a properly noticed public hearing and provide an opportunity for public comment before adopting such an amendment. The amendment shall be in writing and shall be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
(B) If the Department of Justice or the Department of the California Highway Patrol is not in possession of surveillance technology on or before July 1, 2018, and intends to acquire surveillance technology after that date, that agency shall hold a properly noticed public hearing and provide an opportunity for public comment before adopting a Surveillance Use Policy, which shall ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individuals’ privacy and civil liberties. The policy shall be in writing and shall be made publicly available on the agency’s Internet Web site prior to the public hearing and after adoption.
(d) If, before July 1, 2018, a public law enforcement agency has implemented the requirements for automated license plate readers pursuant to Title 1.81.23 (commencing with Section 1798.90.5) of Part 4 of Division 3 of the Civil Code or for cellular communications interception technology pursuant to Article 11 (commencing with Section 53166) of Chapter 1, the law enforcement agency shall include the required information as part of the Surveillance Use Policy required by subdivision (a).
(e) If a law enforcement agency is not in possession of surveillance technology on or before July 1, 2018, and intends to acquire surveillance technology after that date, the law enforcement agency shall submit a Surveillance Use Policy to its governing body pursuant to subdivision (a) for consideration.

(e)At

(f) (1) Except as provided in paragraph (2), at a time interval agreed to by the public law enforcement agency and the governing body, but not less often than every two years, a public law enforcement agency that uses surveillance technologies and which has an approved Surveillance Use Policy shall submit to its governing body a written Surveillance Technology Use Report. The report shall be made publicly available on the agency’s Internet Web site, and shall, at a minimum, include the following:

(1)

(A) The total costs for each surveillance technology, including personnel costs.

(2)

(B) A description of how many times each type of technology was used in the preceding year and how many times each type of technology helped apprehend suspects or close a criminal case.

(3)

(C) A description of the type of data collected by each surveillance technology, including whether each technology captured images, sound, or other data.

(4)

(D) The number of times and the purposes surveillance technology was borrowed from or lent to another agency, including technologies used under exigent circumstances.

(5)

(E) The number and classification of the agency employees trained and authorized to use each type of surveillance technology, along with a description of the training provided to agency employees on each type of surveillance technology and how often the training was provided.

(6)

(F) Disclosure of whether any surveillance technology was used in a manner out of compliance with the agency’s Surveillance Use Policy, whether data collected through the use of surveillance technology was inappropriately disclosed, released, or in any other way revealed for a nonapproved reason, and the steps the agency took to correct the error.
(2) Not less than every two years, the Department of Justice and the Department of the California Highway Patrol shall each publish and post on their Internet Web sites, a written Surveillance Technology Use Report containing the information required by subparagraphs (A) through (F).

(f)

(g) Nothing in this section shall be construed to prohibit a governing body body, the Department of Justice, or the Department of the California Highway Patrol from adopting additional protocols as they relate to surveillance technology. A governing body may reevaluate any existing Surveillance Use Policy at a properly noticed public meeting on the regular, nonconsent calendar and revoke or request amendments to the policy.

(g)

(h) A public law enforcement agency shall not sell, share, or transfer information gathered by surveillance technology, except to another public law enforcement agency, and only as permitted by law and as allowed by an approved Surveillance Use Policy.

54999.9.
 In addition to any other sanctions, penalties, or remedies provided by law, an individual who has been harmed by a violation of this section may bring a civil action in any court of competent jurisdiction against a person who knowingly caused that violation. The court may award a combination of any one or more of the following:
(a) Actual damages, but not less than liquidated damages in the amount of two thousand five hundred dollars ($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.

54999.95.
 (a) A public law enforcement agency may temporarily acquire or temporarily use a surveillance technology in a manner not expressly allowed by a Surveillance Use Policy in exigent circumstances without following the provisions of Section 54999.85 before that acquisition or use unless that acquisition or use in exigent circumstances conflicts with, or is preempted by, other state or federal law.
(b) If a public law enforcement agency acquires or uses a surveillance technology in exigent circumstances, the agency shall:
(1) Use the surveillance technology to solely respond to the exigent circumstances.
(2) Cease using the surveillance technology when the exigent circumstances end.
(3) Only keep and maintain data related to the exigent circumstances and dispose of any data that is not related to the exigent circumstances.
(4) Report that acquisition or use to the governing body within 45 days following the end of the exigent circumstances.
(c) Any technology temporarily acquired in exigent circumstances shall be returned within seven days following its acquisition, or when the exigent circumstances end, whichever is sooner, unless the technology is submitted to the governing body for approval pursuant to subdivisions (a) to (c) of Section 54999.85, inclusive, and approved. If the agency is unable to comply with the seven-day timeline, the agency shall notify the governing body, who may grant an extension.

SEC. 3.

 The Legislature finds and declares that Section 2 of this act, which adds Chapter 15 (commencing with Section 54999.8) to Part 1 of Division 2 of Title 5 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
By requiring public law enforcement agencies to submit their proposed Surveillance Use Policy for consideration by their governing body at a public hearing, this act furthers the purposes of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.