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AB-2598 Law enforcement agencies: Federal Bureau of Investigation: Joint Terrorism Task Force.(2019-2020)

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Date Published: 02/20/2020 09:00 PM
AB2598:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2598


Introduced by Assembly Members Bonta and Chiu

February 20, 2020


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


AB 2598, as introduced, Bonta. Law enforcement agencies: Federal Bureau of Investigation: Joint Terrorism Task Force.
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 require a California law enforcement agency that participates in the Federal Bureau of Investigation’s (FBI) Joint Terrorism Task Force (JTTF) to do so only in a manner that is fully consistent with the laws of the State of California, including the agency’s own policies, procedures, and orders. The bill would require, before a California law enforcement agency enters into or amends a Memorandum of Understanding (MOU) with a federal law enforcement agency regarding the agency’s participation on the JTTF, that the agency submit the proposed MOU and any orders, policies, and procedures relevant to the subject matter of the MOU to its governing body, or the Attorney General as appropriate, for approval.
This bill would require a local governing body to post information relating to the proposed MOU on its internet website and to, at a regularly scheduled hearing, with an opportunity for public comment, consider the MOU for adoption by resolution or ordinance on the regular, nonconsent calendar. The bill would require the Attorney General to post a proposed MOU submitted to it for approval by a state law enforcement agency, and all relevant material, on its internet website and allow at least 90 days to receive and consider public comment before considering the MOU for approval.
This bill would require a participating local law enforcement agency to provide by February 1 of each year, to its local governing body and to the Department of Justice a written, public report about its activities in the JTTF between January 1 and December 31 of the prior year that contains specified information, including, among other things, the number of local law enforcement officers assigned to the JTTF and the funding source. The bill would require the Attorney General to post all of the reports on its internet website, without any redaction.
This bill would require the local governing body of any county, city, or city and county in which a local law enforcement agency has participated on the JTTF during the last year to hold at least one community forum during the following year to provide information to the public about the law enforcement agency’s participation in the JTTF and to receive and consider public comment. The bill would also require the local law enforcement agency to participate in the forum, as specified.
Because this bill would impose additional requirements on local public agencies, the bill 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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 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. Policies for Law Enforcement Participation on the Federal Bureau of Investigation’s Joint Terrorism Task Force

54999.8.
 This chapter shall be known, and may be cited, as _____.

54999.81.
 The Legislature finds and declares all of the following:
(a) California is home to many diverse communities that contribute to the social, political, economic, and cultural richness of the state. The State of California values and embraces this diversity and respects the civil and human rights of all residents regardless of race, national origin, religion, or political opinion.
(b) A relationship of trust between California’s diverse communities and state and local agencies is central to the public safety of the people of California.
(c) Maintaining this trust requires state and local law enforcement at all times to act in compliance with the United States and California Constitutions, the laws and regulations of the State of California, and local ordinances, with transparency and effective civilian oversight.
(d) As currently established and operated, the Federal Bureau of Investigation’s (FBI) Joint Terrorism Task Forces (JTTF) do not comply with the California Constitution, laws and regulations of the state of California, or in some cases, with local ordinances, and lack the necessary transparency and civilian oversight of state and local law enforcement officials required by California law.
(e) The primary “controlling document” under the standard JTTF Memorandum of Understanding with the FBI is the Attorney General’s Guidelines for Domestic FBI Operations as last revised by Attorney General Michael Mukasey. Those guidelines authorize a variety of intelligence gathering and surveillance activities in circumstances that are not permitted under California law. For example, they authorize use of surveillance and informants without suspicion of criminal activity or any factual criminal predicate. The FBI’s Domestic Investigations and Operations Guide based on the guidelines was revised effective October 2011 to authorize activities that include searching people’s trash without suspicion of wrongdoing and infiltrating up to five meetings of a lawful organization before rules governing this so-called “undisclosed participation” would apply.
(f) The State of California has a strong “right to privacy” that conflicts with many of the intelligence activities that the guidelines authorize for federal law enforcement officials. In 1972, California voters passed a measure establishing “privacy” as an inalienable right under Section 1 of Article I of the California Constitution. The official ballot argument in favor of the proposition, coauthored by California Senator George Moscone, stated in part, “The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom to associate with people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us….”
(g) The Department of Justice, citing rulings of the California Supreme Court, has confirmed to law enforcement agencies in the state that this right to privacy provides greater protection against unwarranted intelligence gathering than is required under federal law. The Attorney General’s Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities (2007) warns local law enforcement that gathering intelligence in the absence of a factual criminal predicate based on reasonable suspicion of criminal activity violates California’s inalienable right to privacy.
(h) The FBI and the JTTF have a long and troubling history of profiling individuals based on their race, religion, and national origin. For example, after the tragic events of September 11, 2001, the FBI used bogus counterterrorism measures to entrap an innocent California man and wrongfully prosecute and imprison him for 14 years on terrorism-related charges based solely on his religious views and national origin. Another example involves the San Francisco office of the FBI, which investigated Black civil rights groups as terrorism threats, even without any reasonable suspicion of wrongdoing.
(i) The United States Department of Justice explicitly authorizes the FBI to map California communities by race and ethnicity, and track racial and ethnic “behaviors,” a broad form of racial and ethnic profiling.
(j) Immigration and Customs Enforcement (ICE) agents participate on the FBI’s JTTFs and subjects of JTTF investigations may be targeted with selective immigration enforcement actions even if no criminal charges are laid. The FBI JTTFs also work closely with Customs and Border Protection (CBP) agents to target individuals for recruitment as informants.
(k) Decisions about whether to participate in the JTTF should not be made solely by state or local law enforcement agencies, but by 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 join the JTTF.

54999.82.
 The following definitions apply for purposes of this chapter:
(a) “Assessments” mean any intelligence gathering activities that are not based on a factual predicate creating a reasonable suspicion of criminal activity.
(b) “Community forum” includes, but is not limited to, any regular meeting of the local governing body that is open to the public, where the public may provide comment, is in an accessible location, and is publicly noticed at least 30 days in advance.
(c) “California law enforcement agency” means any agency of the State of California, a city, county, city and county, special district, or other political subdivision of the state, including, but not limited to, transit police and school police or security departments, fire departments and other emergency response services, and district attorneys’ offices, that is authorized to enforce criminal statutes, regulations, or local ordinances; or to operate jails or maintain custody of individuals in jails; or to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities; or to maintain compliance with probation or parole conditions.
(d) “Duty to warn” means a requirement to warn U.S. and non-U.S. persons of impending threats of intentional killing, serious bodily injury, or kidnapping.
(e) “Joint Terrorism Task Force” or “JTTF” means an FBI-led partnership, arrangement, agreement, memorandum of understanding, contract, assignment, task force, or joint operation or enforcement activity including one or more California law enforcement agencies or state, local, and federal law enforcement and emergency management agencies, in which the primary purpose of the partnership is to investigate terrorism or engage in counterterrorism activities.
(f) “Local governing body,” with respect to a county, means the county board of supervisors, and with respect to a city, means the city council. The local governing body, with respect to transit police, includes the board of directors or the commissioners for the transportation agency.
(g) “MOU” means a memorandum of understanding entered into between a federal law enforcement agency and one or more California law enforcement agencies to join or participate in the JTTF, as set forth in subdivision (e).
(h) “School police and security departments” includes police and security departments of the University of California, the California State University, the California Community Colleges, charter schools, county offices of education, schools, and school districts.
(i) (1) “Surveillance equipment and 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 recognition systems, closed-circuit cameras or televisions, international mobile subscriber identity (IMSI) trackers, Global Positioning System (GPS) technology, software designed to monitor social media services or forecast criminal activity or criminality, radio frequency identification (RFID) technology, body-worn cameras, biometric identification hardware or software, and facial recognition hardware or software.
(2) “Surveillance equipment and technology” does not include standard public agency hardware or software in widespread public use and not used by the law enforcement agency for any surveillance or surveillance-related functions, including televisions, computers, printers, parking ticket devices, case management databases, medical equipment used to diagnose, treat, or prevent disease or injury, fingerprint scanners, ignition interlock devices, cellular or standard telephones, and two-way radios, or other similar electronic devices.
(j) “Transit police” includes police and security departments that provide security services to transportation agencies, including, but not limited to, the Bay Area Rapid Transit (BART) Police Department and the Orange County Transit Authority Transit Police Services.
(k) “U.S. person” means a citizen of the United States, an individual lawfully admitted for permanent residence, an unincorporated association with a substantial number of members who are citizens of the United States or are individuals lawfully admitted for permanent residence, or a corporation that is incorporated in the United States.

54999.83.
 A California law enforcement agency that chooses to participate in the FBI’s Joint Terrorism Task Force shall do so only in a manner that is fully consistent with the laws of the State of California. These laws include, but are not limited to, the inalienable right to privacy guaranteed by Section 1 of Article I of the California Constitution, the laws and policies of the political subdivision of the state in which the California law enforcement agency is situated, and the agency’s own policies, procedures, and orders.

54999.84.
 (a) (1) Notwithstanding any law, before a local law enforcement agency enters into an MOU or other written agreement, contract, or arrangement between it and the FBI or other federal law enforcement agency regarding the local law enforcement agency’s participation on the JTTF, or any amendment to any existing MOU relating to its participation on the JTTF, the local law enforcement agency shall submit the proposed MOU and any orders, policies, or procedures relevant to the subject matter of the MOU to its governing body for approval.
(2) The local governing body shall make the MOU and any orders, policies, and procedures relevant to the subject matter of the MOU available to the public on its internet website for 90 days prior to holding a public hearing pursuant to paragraph (3) and, if it is adopted, for 90 days after adoption.
(3) The local governing body, at a regularly scheduled hearing, shall consider the MOU 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.
(b) (1) Before a state law enforcement agency enters into an MOU or other written agreement, contract, or arrangement between it and the FBI or other federal law enforcement agency regarding the state law enforcement agency’s participation on the JTTF, or any amendment to any existing MOU relating to its participation on the JTTF, the state law enforcement agency shall submit the proposed MOU and any orders, policies, or procedures relevant to the subject matter of the MOU to the Department of Justice for approval.
(2) The Attorney General shall post the MOU and all relevant material submitted by the law enforcement agency on the Attorney General’s internet website and allow at least 90 days to receive and consider public comment before considering the MOU for approval.

54999.85.
 (a) By February 1 of each year, a local law enforcement agency that has entered into an MOU or other written agreement, contract, or arrangement between it and the FBI or other federal law enforcement agency regarding the local law enforcement agency’s participation on the JTTF shall provide to the local governing body and to the Department of Justice a written public report about its activities in the JTTF between January 1 and December 31 of the prior year that contains all of the following information:
(1) The number of local law enforcement officers assigned to the JTTF, both full time and part time, and the funding source for the local law enforcement officers’ salary and overtime.
(2) The type of communication and surveillance equipment and technology used by a local law enforcement officer assigned to the JTTF, and the funding source for the equipment.
(3) The general type of cases a local law enforcement officer was assigned to when participating in the JTTF, the total number of cases the local law enforcement officer worked on when assigned to the JTTF, and the number of “duty to warn” cases.
(4) The number of times the FBI or any other federal law enforcement agency asked the local law enforcement agency to assist in assessments, investigations, or other intelligence gathering activities and the law enforcement agency declined to assist, and the reason the local law enforcement agency declined to assist the FBI.
(5) The number of times each of the following occurred:
(A) An assessment was opened or conducted by a local law enforcement officer.
(B) An assessment was closed without becoming preliminary or full investigations.
(C) A voluntary interview was opened or conducted by a local law enforcement officer.
(D) A voluntary interview was closed without becoming preliminary or full investigations.
(E) The local law enforcement agency approved the use of local law enforcement undercover agents for JTTF operations.
(F) A local law enforcement officer assigned to the JTTF recruited, tasked, or managed informants assigned to terrorism investigations.
(G) A local law enforcement officer was assigned to work on a case involving informants in which the United States Department of Justice authorized the informants to engage in otherwise criminal activity.
(H) A local law enforcement officer was involved in a case in which information about whether or not an individual or entity was a U.S. person was collected.
(6) A description of the training given to the local law enforcement officer assigned to the JTTF to ensure compliance with state and local laws, policies, department orders and procedures, the date of last training update, and the date of last training audit.
(7) The number of actual or potential violations of state or local laws, policies, department orders or procedures, the actions taken by the California law enforcement agency to address actual and potential violations, and recommendations by the California law enforcement agency to prevent future violations.
(8) The name and title of any officer who supervises a local law enforcement officer participating in the JTTF within the California law enforcement agency and within the FBI.
(9) The frequency with which a local law enforcement officer participating in the JTTF briefs their immediate supervisor within the California law enforcement agency about JTTF cases they are working on.
(b) The Attorney General shall post all reports required by this section on its internet website, without any redaction.

54999.86.
 (a) The local governing body of any county, city, or city and county in which a local law enforcement agency has participated on the JTTF during the last year shall hold at least one community forum during the following year that is open to the public, is in an accessible location, and with at least 30 days’ notice to provide information to the public about the local law enforcement agency’s participation in the JTTF and to receive and consider public comment.
(b) As part of the forum described in subdivision (a), the local law enforcement agency shall provide the governing body and the public with the written report it is required to issue pursuant to Section 54999.85, provide an oral report, and answer questions from members of the governing body and the public.

SEC. 2.

 The Legislature finds and declares that Section 1 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 discussion related to the decision to participate in a Joint Terrorism Task Force, this act furthers the right of public access to the meetings of public bodies.

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 under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.