"NEW SECTION.  Sec. 1   The rapid development of advanced technologies that can monitor and record private behavior beyond the ability of normal human senses has made it necessary for the legislature to establish new technology-neutral standards to protect individual liberty. While all technology is neutral in itself, it is the application by humans that can be both good and bad. Whether surveillance is conducted by the individual, groups, or the government, citizens are not always aware when technology is being used to record and monitor their personal and private behavior. Surveillance conducted remotely and observing activities that were previously not viewable by the naked eye is rapidly increasing. As a consequence, conduct that was formerly considered private may be at risk of losing legal protection from government intrusion--for example, satellites equipped with high resolution cameras can peer into our backyards and our skylights, or read the book we are reading on a park bench. The legislature finds that the right to privacy protects people, not places, and although the expectation of privacy in public spaces may be lower than in private spaces, it is not entirely eliminated. The legislature finds that if legal protections for personal privacy fail to keep up with evolving technology, the delicate balance of power between an individual and the state may be disturbed in a manner destructive to the personal freedom that is essential to our democracy. It is the intent of the legislature to ensure that the gathering of personal information by the state is restricted to that which is reasonably necessary to meet legitimate societal objectives, and to establish an expectation that certain forms of government surveillance, using extraordinary sensing devices from a vantage point not readily accessible to members of the general public, may not occur without the supervision of a court, through a court-ordered warrant.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this section and sections 3 through 10 of this act unless the context clearly requires otherwise.
     (1)(a) "Agency" means the state of Washington, its agencies, and political subdivisions.
     (b) "Agency" also includes any entity or individual, whether public or private, foreign or domestic, with which any of the entities identified in (a) of this subsection has entered into a contractual relationship or any other type of relationship, with or without consideration, for the operation of a sensing device that acquires, collects, or indexes personal information to accomplish an agency function.
     (2) "Clear and conspicuous notice" means notice that is reasonably easy to find and easily understandable in terms of content and style to the average reader, informing the public of the form of surveillance used and how the information obtained by the surveillance will be stored, used, or disclosed.
     (3) "Conduct surveillance" means to engage in or induce a third party to engage in the act of collecting personal information.
     (4) "Court of competent jurisdiction" means any district court of the United States or any United States court of appeals that has jurisdiction over the offense being investigated or is located in a district in which surveillance with the assistance of the extraordinary sensing device will be conducted, or a court of general jurisdiction authorized by the state of Washington to issue search warrants.
     (5) "Extraordinary sensing device" means a sensing device that is capable of remotely acquiring personal information from its surroundings, using any frequency of the electromagnetic spectrum, but does not include night vision goggles or equipment whose sole function is to provide information directly necessary for safe air navigation or operation of a vehicle.
     (6) "Extraordinary vantage point" means a vantage point to which an ordinary member of the public does not have ready access.
     (7) "Imperceptible" means highly unlikely to be perceived by the unassisted senses of a human being of ordinary abilities.
     (8) "Personal information" means all information that:
     (a) Describes, locates, or indexes anything about a person including, but not limited to: (i) His or her social security number, driver's license number, agency-issued identification number, student identification number, real or personal property holdings derived from tax returns, and the person's education, financial transactions, medical history, ancestry, religion, political ideology, or criminal or employment record; or (ii) intellectual property, trade secrets, proprietary information, or operational information;
     (b) Affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such a person; and the record of the person's presence, registration, or membership in an organization or activity, or admission to an institution; or
     (c) Describes, locates, or indexes anything about a person including, but not limited to, his or her activities, behaviors, pursuits, conduct, interests, movements, occupations, or associations.

NEW SECTION.  Sec. 3   (1) Except as otherwise specifically authorized in sections 2 through 10 of this act, it is unlawful for the state of Washington, its agencies, and political subdivisions to conduct surveillance with an extraordinary sensing device from an extraordinary vantage point.
     (2)(a) An agency may operate an extraordinary sensing device from an extraordinary vantage point for the following purposes, which are not deemed "conducting surveillance" under subsection (1) of this section, as long as the operation is not intended to collect personal information and the purpose of the operation is not an investigation of criminal activity or an investigation or enforcement of regulatory violations or noncompliance:
     (i) Monitoring to discover, locate, observe, and prevent forest fires, but only in such places and at times when there is high fire danger or a fire-related emergency has been declared by the governor or a state or local authority;
     (ii) Monitoring an environmental or weather-related catastrophe or damage from such an event, but only when a catastrophe has been publicly declared by the governor and then only for a period of thirty days from the date of the public declaration;
     (iii) Surveying for wildlife management, habitat preservation, or environmental damage, but only on public land and only when written policies and procedures have been adopted to minimize any incidental surveying of private land. No data or images of private land collected under the authority of this subsection may be used in any regulatory or criminal proceeding in any manner, nor may the data or images form the basis of any affidavit or declaration to be admitted in those proceedings; or
     (iv) Surveying for the assessment and evaluation of environmental or weather-related damage, erosion, flood, or contamination, but only after the head of any agency or its legislative authority has published notice of intent to conduct the survey in the newspaper of record in each county in which the survey is to occur, stating with specificity the time, place, and manner by which the surveying will be done and when it will be completed.
     (b) If an agency uses an extraordinary sensing device from an extraordinary vantage point for one of the limited purposes outlined in (a) of this subsection, the agency must:
     (i) Delete or deidentify any personal information that was accidentally or incidentally collected during the operation as soon as practicable, pursuant to a precise and limited retention schedule; and
     (ii) Comply with the annual reporting and data minimization requirements of section 6 (4) through (6) of this act.      
     (c) Any personal information accidentally or incidentally collected in an operation conducted under this subsection (2) may not be introduced as evidence in any civil or criminal court proceeding, except in a prosecution of a felony.

NEW SECTION.  Sec. 4   (1) The state of Washington, its agencies, and political subdivisions may conduct surveillance otherwise prohibited under section 3 of this act pursuant to a criminal search warrant issued by a court of competent jurisdiction upon a finding of probable cause.
     (2) Evidence obtained in violation of sections 2 through 7 of this act may not be used to support a finding of probable cause under this section.     
     (3) Except as provided in section 8 of this act, no personal information collected on an individual or area other than the target that justified the issuance of the search warrant may be disclosed or distributed outside of the agency that conducted the surveillance, except:
     (a) Information about individuals or areas other than the target may be disclosed to the court and counsel as necessary for prosecuting the target or targets that justified the issuance of the search warrant; and
     (b) Information may be disclosed as necessary for a purpose that is authorized under sections 3 through 10 of this act.

NEW SECTION.  Sec. 5   (1) It is lawful for the state of Washington, its agencies, and political subdivisions to conduct surveillance using an extraordinary sensing device from an extraordinary vantage point and to disclose personal information derived from operation of an extraordinary sensing device under the following emergency circumstances:
     (a) An agency elected official, appointed official, director, or deputy director reasonably determines that:
     (i) An emergency situation exists that involves criminal activity and presents immediate danger of death or serious physical injury to any person;
     (ii) Addressing the danger identified in (a)(i) of this subsection requires operation of the device before a warrant authorizing the operation can, with due diligence, be obtained; and
     (iii) There are grounds upon which such a warrant could be entered to authorize such an operation.
     (b) An agency employee or authorized agent reasonably determines that an emergency situation exists and:
     (i) The emergency presents an immediate danger of death or serious physical injury to any person;
     (ii) Addressing the emergency situation identified in (b)(i) of this subsection requires operation of an extraordinary sensing device to reduce the danger of death or serious physical injury;
     (iii) The purpose of the operation is not investigation of criminal activity; and
     (iv) The operation is not intended to collect personal information.
     (2)(a) An application for a warrant providing for the operation of the extraordinary sensing device under subsection (1) of this section must be made within forty-eight hours after the operation begins.
     (b) The surveillance must be immediately terminated when the personal information sought is obtained or when the application for the warrant is denied, whichever is earlier.
     (c) Any personal information incidentally collected during the operation must be deleted within seventy-two hours of the operation's completion, unless it is not reasonably feasible to delete the personal information without compromising information, the retention of which is still necessary in order to address the emergency situation or prosecute the criminal activity that necessitated the emergency operation under subsection (1)(a) of this section.
     (d) Within seventy-two hours of authorizing surveillance pursuant to the provisions in subsection (1)(b) of this section, the agency employee or authorized agent must provide written notice to the head of the agency and to the prosecuting authority of any county in which the surveillance has been authorized. The agency must promptly allow the prosecuting authority in the county or counties where such an operation is occurring or has occurred to review any data collected.     
     (3) In the event an application for a warrant under subsection (2)(a) of this section is denied, the personal information obtained from the operation of an extraordinary sensing device must be treated as having been obtained in violation of this chapter for the purpose of the exclusion of evidence under section 4(2) of this act.
     (4) Any law enforcement or other agency that conducts surveillance using an extraordinary sensing device from an extraordinary vantage point under the authority of this section must issue an annual public audit as required under section 6 of this act.

NEW SECTION.  Sec. 6   Agency procurement and use of extraordinary sensing devices for surveillance purposes must be conducted in a transparent manner that is open to public scrutiny, as provided in this section.
     (1) For the purposes of this section, "governing body" means the council, commission, board, or other controlling body in which legislative powers are vested, except where no governing body exists other than the state legislature, in which case, "governing body" means the chief executive officer responsible for the governance of the agency.
     (2) No agency may procure an extraordinary sensing device for surveillance purposes without first obtaining explicit approval from the agency's governing body.
     (3) The governing body shall develop and make publicly available written policies and procedures for the use of the extraordinary sensing device and provide notice and opportunity for public comment prior to adoption of the written policies and procedures.
     (4) For any calendar year in which an agency has procured or used an extraordinary sensing device to conduct surveillance from an extraordinary vantage point, the agency must prepare an annual report. The report must be made publicly available and must at a minimum include the following:
     (a) The types of extraordinary sensing devices used, the purposes for which each type of extraordinary sensing device was used, the circumstances under which use was authorized, and the name of the officer or official who authorized the use;
     (b) Whether deployment of the device was imperceptible to the public;
     (c) The specific kinds of personal information that the extraordinary sensing device collected about individuals;
     (d) The length of time for which any personal information collected by the extraordinary sensing device was retained;
     (e) The specific steps taken to mitigate the impact on an individual's privacy, including protections against unauthorized use and disclosure and a data minimization protocol; and
     (f) An individual point of contact for citizen complaints and concerns.
     (5) The data minimization protocol required under subsection (4)(e) of this section must state the steps taken by the agency to ensure that:
     (a) Personal information is collected for legitimate, limited, and specifically stated purposes;
     (b) Collection of personal information is limited to the minimum amount necessary for the specified purposes and appropriate technologies are used to minimize the data collected. For example, the agency uses encryption where practicable to obscure the images of individuals whose identity is not related to the regulatory purpose of the surveillance;
     (c) Personal information is only used and disclosed for the purposes specified;
     (d) Personal information is deleted pursuant to precise and appropriately limited retention schedules and in such a manner that prevents the agency or a third party from being able to reconstruct the personal information after deletion; and
     (e) Only authorized persons have access to information and data obtained through surveillance and authorized persons have received training on their duties and obligations to ensure the confidentiality of the information and data.
     (6) Each agency, if required to report under subsection (4) of this section, must submit the annual report for the previous calendar year by March 1st, beginning in 2015, as follows:
     (a) In the case of local government agencies, the annual reports must be submitted to the agency's governing body.
     (b) In the case of state agencies, the annual reports must be submitted to the joint legislative audit and review committee, who shall compile the results and submit them to the legislature by September 1st of each year, beginning in 2015.

NEW SECTION.  Sec. 7   It is lawful for the state of Washington, its agencies, and political subdivisions to conduct surveillance using an extraordinary sensing device from an extraordinary vantage point without meeting the requirements of sections 3 through 6 of this act if the operation is part of a training exercise conducted on a military base and the extraordinary sensing device does not collect the personal information of persons located outside the military base.

NEW SECTION.  Sec. 8   Any personal information obtained in violation of sections 3 through 7 of this act is inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except:
     (1) In an action for damages under section 9 of this act, with the permission of the person whose rights have been violated; or
     (2) In a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

NEW SECTION.  Sec. 9   Any person who intentionally violates the provisions of sections 2 through 8 of this act is subject to legal action for damages, to be brought by any other individual claiming that a violation of sections 2 through 8 of this act has injured his or her business, his or her person, or his or her reputation. An individual so injured is entitled to actual damages, including mental pain and suffering endured by the individual on account of the violation, or liquidated damages, computed at the rate of one thousand dollars per day for each day of violation, not to exceed ten thousand dollars. In addition, the individual is entitled to reasonable attorneys' fees and other costs of litigation.

NEW SECTION.  Sec. 10   The attorney general is encouraged to compile and make available to agencies a list of devices that it has determined to be "extraordinary sensing devices." The legislature delegates to the attorney general the authority to make such a determination based on the definition established in section 2 of this act and the stated intent of sections 2 through 9 of this act.

NEW SECTION.  Sec. 11   Sections 2 through 10 of this act are each added to chapter 9.73 RCW and codified with the subchapter heading of "extraordinary sensing devices."

NEW SECTION.  Sec. 12   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."