BILL REQ. #:  H-2786.2 

Prefiled 01/08/14. Read first time 01/13/14.   Referred to Committee on Technology & Economic Development.

     AN ACT Relating to technology-enhanced government surveillance; adding new sections to chapter 9.73 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

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, while constitutional protections against government invasions into private affairs are strongest inside one's home with the windows shuttered, the scope of legal protections drops precipitously for the private affairs of an individual who leaves his or her home, and for those private affairs of an individual conducted inside the home but from a public vantage point. 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 when 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 restore this delicate balance, by ensuring that the gathering of personal information by the state is restricted to that which is reasonably necessary to meet legitimate societal objectives, and by establishing an expectation that certain forms of government surveillance using extraordinary sensing devices may not be conducted, from any vantage point, 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) "Agency" means the state of Washington, its agencies, and political subdivisions.
     (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 using an extraordinary sensing device.
     (4) "Court of competent jurisdiction" includes 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 uncommon to society, under a community-based standard. A sensing device is uncommon if its use and existence has not become integrated into the ordinary societal experience of the community as of January 1, 2014. In making a determination about whether a device is uncommon and has not been socially integrated into the experience of a community, the court shall consider all relevant factors including, but not limited to:
     (a) The level of technology and sophistication of the device;
     (b) The extent to which the device, as of January 1, 2014, was commercially available to individual members of the community at retail stores located in that community;
     (c) The extent of the use of the device in a nongovernmental context within the community and public awareness in the community of such use; and
     (d) The extent to which the device makes conduct visible from an extraordinary vantage point.
     (6) "Extraordinary vantage point" means a vantage point to which an ordinary member of the public would 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, 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;
     (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, intellectual property, trade secrets, proprietary information, or operational information.
     (9) "Sensing device" means a device capable of remotely acquiring personal information from its surroundings, using any frequency of the electromagnetic spectrum. "Sensing device" does not include equipment whose sole function is to provide information directly necessary for safe air navigation or operation of a vehicle.

NEW SECTION.  Sec. 3   Except as otherwise specifically authorized in this section and sections 4 through 6 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, when the persons or activities being observed are located within the boundaries of an individual's private residential property, including the privately owned lands surrounding the home, and the surveillance is conducted without the consent of the individual or individuals entitled to privacy in that place.

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 9 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 used, copied, or disclosed for any purpose. This personal information must be deleted as soon as possible, and in no event later than ten days after collection.

NEW SECTION.  Sec. 5   (1) It is lawful for the state of Washington, its agencies, and political subdivisions to conduct surveillance and disclose personal information derived from operation of an extraordinary sensing device under the following exigent 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 has occurred or begins to occur.
     (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.     
     (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 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) No agency may procure an extraordinary sensing device for surveillance purposes without first obtaining explicit approval from the agency's governing body.
     (2) 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.
     (3) The governing body shall conduct an annual comprehensive audit on each agency that conducts surveillance in any location using an extraordinary sensing device. The audit 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 perceptible 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
     (f) An individual point of contact for citizen complaints and concerns.      
     (4) Beginning September 1, 2015, and each year thereafter, state agencies shall submit the annual audit conducted under this section to the state patrol, who shall compile the results and submit them to the legislature by November 1, 2015, and November 1st of each year thereafter.
     (5) For the purposes of this section, "governing body" means the legislature, council, commission, board, or other controlling body in which legislative powers are vested.

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 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 10 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   (1) Except as specifically authorized in this section, the state of Washington, its agencies, and political subdivisions are prohibited from using an extraordinary sensing device to conduct surveillance for the purpose of regulatory enforcement of a permitted or licensed activity.
     (2) An agency must comply with each of the following requirements:
     (a) The agency must give the permittee or licensee clear and conspicuous notice at the time that the permit or license is granted or renewed that the permitted or licensed activity is subject to such surveillance;     
     (b) Prior to conducting surveillance under the authority of this section, the agency must have adopted and published a data minimization protocol establishing reasonable measures to ensure that the surveillance is unlikely to accidentally collect and retain personal information of individuals or activities not related to the permitted or licensed activity, as provided in subsection (3) of this section; and
     (c) The agency must provide an annual report to the legislature and the public, as described in subsection (4) of this section.
     (3) The data minimization protocol required under subsection (2) of this section must state the steps taken by the agency to ensure that:
     (a) Personal information is collected for legitimate, limited, and specific-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 the surveillance and authorized persons have received training on their duties and obligations to ensure the confidentiality of the information and data.
     (4) The annual report required under subsection (2)(c) of this section must detail the agency's use of extraordinary sensing devices for regulatory enforcement. The report must include:
     (a) The specific surveillance purposes for which the agency authorized the use of an extraordinary sensing device and the name of the senior official who authorized the use;
     (b) The specific kinds of personal information that the device is intended to collect or may incidentally collect;
     (c) The amount of time that personal information was retained;
     (d) The steps taken by the agency to ensure that collection of personal information was limited to the minimum amount necessary for the regulatory purpose, including a description of privacy-enhancing technologies embedded into the surveillance equipment and operation; and
     (e) An individual point of contact for complaints and concerns by the regulated entity and by members of the public.
     (5) Evidence obtained in violation of this section may not be used in a regulatory enforcement action taken by the agency.

NEW SECTION.  Sec. 10   Any person who violates the provisions of sections 2 through 9 of this act is subject to legal action for damages, to be brought by any other person claiming that a violation of sections 2 through 9 of this act has injured his or her business, his or her person, or his or her reputation. A person so injured is entitled to actual damages, including mental pain and suffering endured by the person on account of a violation of the provisions of sections 2 through 9 of this act, or liquidated damages computed at the rate of one thousand dollars per day for each day of violation, not to exceed ten thousand dollars, and reasonable attorneys' fees and other costs of litigation.

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.