BILL REQ. #:  S-1309.1 

Read first time 02/14/13.   Referred to Committee on Law & Justice.

     AN ACT Relating to protecting Washington citizens from warrantless surveillance, reducing liability, and establishing clear standards under which agencies may utilize unmanned aerial vehicles; adding a new chapter to Title 10 RCW; prescribing penalties; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The legislature finds that technological advances have provided new, unique equipment that may be utilized for surveillance purposes. These technological advances often outpace statutory protections and can lead to inconsistent or contradictory interpretations between jurisdictions. The legislature finds that regardless of application or size, the use of unmanned aerial vehicles, without public debate or clear legal authority, creates uncertainty for citizens and agencies throughout Washington state. As stated in the congressional research service report entitled 'Integration of Drones into Domestic Airspace,' "the extent of their potential domestic application is bound only by human ingenuity. . .the full-scale introduction of drones into U.S. skies will inevitably generate a host of legal issues. . .With the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers, some argue that drones present a substantial privacy risk." The legislature finds that drones do present a substantial privacy risk potentially contrary to the strong privacy protections enshrined in Article I, section 7 of the Washington state Constitution that reads "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
     The legislature further finds that the lack of clear statutory authority for the use of unmanned aerial vehicles may increase liability to state and local jurisdictions. It is the intent of the legislature to provide clear standards for the lawful use of unmanned aerial vehicles by state and local jurisdictions.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Agency" means any agency, authority, board, department, division, commission, institution, bureau, or like governmental entity of the state or of any unit of local government including counties, cities, towns, regional governments, and the departments thereof, and includes constitutional officers, except as otherwise expressly provided by law. "Agency" also means each component part of the legislative, executive, or judicial branches of state and local government, including each office, department, authority, post, commission, committee, and each institution or board created by law to exercise some regulatory or sovereign power or duty as distinguished from purely advisory powers or duties. "Agency" also includes any entity, whether public or private, with which any of the foregoing has entered into a contractual relationship for the operation of a system of personal information to accomplish an agency function.
     (2) "Biometric identification system" is a system that collects unique physical and behavioral characteristics including, but not limited to, biographical data, facial photographs, fingerprints, and iris scans to identify individuals.
     (3) "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; is in a district in which the public unmanned aircraft will conduct a search or a court of general jurisdiction authorized by the state of Washington to issue search warrants.
     (4) "Judicial officer" means a judge, magistrate, or other person authorized to issue a criminal search warrant.
     (5) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020.
     (6) "Person" includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
     (7) "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 his or her 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 person; and the record of his or her 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.
     (8) "Public unmanned aircraft system" means an unmanned aircraft and associated elements, including communications links, sensing devices, and the components that control the unmanned aircraft, operated by an agency or at the direction of or under the control of an agency.
     (9) "Sensing device" means a device capable of acquiring data or information from its surroundings including, but not limited to, cameras using visible, ultraviolet, or infrared frequencies, microphones, thermal detectors, chemical detectors, radiation gauges, and wireless receivers in any frequency.
     (10) "Trade secrets" means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, which the owner has taken reasonable measures to protect and has an independent economic value.
     (11) "Unmanned aircraft" means an aircraft that is operated without the possibility of human intervention from within or on the aircraft.
     (12) "Unmanned aircraft system" means an unmanned aircraft and associated elements, including communication links and components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system.

NEW SECTION.  Sec. 3   Except as otherwise specifically authorized in this chapter, it shall be unlawful to operate a public unmanned aircraft system or disclose personal information about any person acquired through the operation of a public unmanned aircraft system.

NEW SECTION.  Sec. 4   (1) No state agency or organization having jurisdiction over criminal law enforcement or regulatory violations including, but not limited to, the Washington state patrol, shall procure a public unmanned aircraft system without the explicit approval of the legislature, given for that specific public unmanned aircraft system to be used for a specific purpose.
     (2) No department of law enforcement of any city, county, or town or any local agency having jurisdiction over criminal law enforcement or regulatory violations shall procure a public unmanned aircraft system without the explicit approval of the governing body of such locality, given for that specific public unmanned aircraft system to be used for a specific purpose.

NEW SECTION.  Sec. 5   All operations of a public unmanned aircraft system or disclosure of personal information about any person acquired through the operation of a public unmanned aircraft system shall be conducted in such a way as to minimize the collection and disclosure of personal information not authorized under this chapter.

NEW SECTION.  Sec. 6   A public unmanned aircraft system may be operated and personal information from such operation disclosed in order to collect personal information only pursuant to a criminal warrant issued by a court of competent jurisdiction or as otherwise provided in this section.
     (1) Each petition for a search warrant from a judicial officer to permit the use of a public unmanned aircraft system and personal information collected from such operation shall be made in writing, upon oath or affirmation, to a judicial officer in a court of competent jurisdiction for the geographic area in which a public unmanned aircraft system is to be operated or where there is probable cause to believe the offense for which the public unmanned aircraft system is sought has been committed, is being committed, or will be committed.
     (2) The law enforcement officer shall submit an affidavit that shall include:
     (a) The identity of the applicant and the identity of the agency conducting the investigation;
     (b) The identity of the individual and jurisdictional area for which use of the public unmanned aircraft is being sought;
     (c) Specific and articulable facts demonstrating probable cause to believe that there is criminal activity and that the operation of the public unmanned aircraft system will uncover evidence of such activity or facts to support the finding that there is probable cause for issuance of a search warrant pursuant to applicable requirements;
     (d) The name of the county or city where there is probable cause to believe the offense for which use of the unmanned public aircraft system is sought has been committed, is being committed, or will be committed; and
     (e) A statement that other methods of data collection have been investigated and found to be either cost prohibitive or to pose an unacceptable safety risk to a law enforcement officer or to the public.
     (3) If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the personal information likely to be obtained from the use of the public unmanned aircraft system will be evidence of the commission of such offense, the judicial officer may issue a search warrant authorizing the use of the public unmanned aircraft system. The search warrant shall authorize the collection of personal information contained in or obtained from the public unmanned aircraft system but shall not authorize the use of a biometric identification system.
     (4) Warrants shall not be issued for a period greater than forty-eight hours. Extensions may be granted but shall be no longer than the authorizing judicial officer deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days.
     (5) Within ten days of the execution of a search warrant, the officer executing the warrant must serve a copy of the warrant upon the person or persons upon whom personal information was collected except notice may be delayed under section 7 of this act.

NEW SECTION.  Sec. 7   A governmental entity acting under this section may, when a warrant is sought, include in the petition a request, which the court shall grant, for an order delaying the notification required under section 6(5) of this act for a period not to exceed ninety days if the court determines that there is a reason to believe that notification of the existence of the warrant may have an adverse result.
     (1) An adverse result for the purposes of this section is:
     (a) Placing the life or physical safety of an individual in danger;
     (b) Causing a person to flee from prosecution;
     (c) Causing the destruction of or tampering with evidence;
     (d) Causing the intimidation of potential witnesses; or
     (e) Jeopardizing an investigation or unduly delaying a trial.
     (2) The governmental entity shall maintain a copy of certification.
     (3) Extension of the delay of notification of up to ninety days each may be granted by the court upon application or by certification by a governmental entity.
     (4) Upon expiration of the period of delay of notification under subsection (1) or (3) of this section, the governmental entity shall serve a copy of the warrant upon, or deliver it by registered or first-class mail to, the person or persons upon whom personal information was collected together with notice that:
     (a) States with reasonable specificity the nature of the law enforcement inquiry; and
     (b) Informs the person or persons upon whom personal information was collected (i) that notification was delayed; (ii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and (iii) which provision of this section allowed such delay.

NEW SECTION.  Sec. 8   It shall be lawful under this section for any law enforcement officer or other public official to operate a public unmanned aircraft system and disclose personal information from such operation if:
     (1) Such officer reasonably determines that an emergency situation exists that involves immediate danger of death or serious physical injury to any person and:
     (a) Requires operation of a public unmanned aircraft system before a warrant authorizing such interception can, with due diligence, be obtained;
     (b) There are grounds upon which such a warrant could be entered to authorize such operation; and
     (c) An application for a warrant providing such operation is made within forty-eight hours after the operation has occurred or begins to occur.
     (2) In the absence of a warrant, an operation of a public unmanned aircraft system carried out under this subsection shall immediately terminate when the personal information sought is obtained or when the application for the warrant is denied, whichever is earlier.
     (3) In the event such application for approval is denied, the personal information obtained from the operation of a device shall be treated as having been obtained in violation of this section and an inventory shall be served on the person named in the application.

NEW SECTION.  Sec. 9   A public unmanned aircraft system may be operated and personal information from such operation disclosed in order to collect information pursuant to a search warrant issued by a court of competent jurisdiction by any judicial officer having authority to issue such warrant whose territorial jurisdiction encompasses the area to be inspected or entered or as otherwise provided in this section.
     (1) Each petition for a warrant from a judicial officer to permit the use of a public unmanned aircraft system and information collected from such operation shall be made in writing, upon oath or affirmation, to a judicial officer in a court of competent jurisdiction for the geographic area in which a public unmanned aircraft system is to be operated or where there is probable cause, supported by affidavit, particularly describing the place, property, things, or persons to be inspected, tested, or information collected and the purpose for which the inspection, testing, or collection of information is to be made.
     (2) Probable cause shall be deemed to exist if either:
     (a) Reasonable legislative or administrative standards for conducting such inspection, testing, or information collected are satisfied with respect to the particular place, property, thing, or person; or
     (b) There is cause to believe that there is such a condition, object, activity, or circumstance that legally justifies such inspection, testing, or collection of information.
     (3) The agency official shall submit an affidavit that shall include the identity of the applicant and the identity of the agency conducting the inspection.
     (4) The supporting affidavit shall contain either a statement that consent to the search and collection of information has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent in order to enforce effectively the safety and health laws, regulations, or standards of the warrant based on legislative or administrative standards for inspection.
     (5) The affidavit shall contain factual allegations sufficient to justify an independent determination by a judge that the search is based on reasonable standards and the standards are being applied to a particular area in a neutral and fair manner.
     (6) The issuing judicial officer may examine the affiant under oath or affirmation to verify the accuracy of any matter in the affidavit.
     (7) Any warrant issued shall be effective for the time specified therein, but not for a period of more than fifteen days unless extended or renewed by the judicial officer who signed and issued the original warrant. The warrant shall be executed and shall be returned to the judicial officer by whom it was issued within the time specified in the warrant or within the extended or renewed time. The return shall list the information collected pursuant to the warrant. After the expiration of such time, the warrant, unless executed, shall be void.
     (8) No warrant shall be executed in the absence of the owner, tenant, operator, or custodian of the premises unless the issuing judicial official specifically authorizes that such authority is reasonably necessary to affect the purposes of the law or regulation. Entry pursuant to such a warrant shall not be made forcibly. The issuing officer may authorize a forcible entry where the facts (a) create a reasonable suspicion of immediate threat to the health or safety of persons or to the environment or (b) establish that reasonable attempts to serve a previous warrant have been unsuccessful. If forcible entry is authorized, the warrant shall be issued jointly to the applicant agency and a law enforcement officer shall accompany the agency official during the execution of the warrant.
     (9) No court of the state shall have jurisdiction to hear a challenge to the warrant prior to its return to the issuing judicial officer, except as a defense in a contempt proceeding or if the owner or custodian of the place to be inspected submits a substantial preliminary showing by affidavit and accompanied by proof that (a) a statement included by the affiant in his or her affidavit for the search warrant was false and made knowingly and intentionally or with reckless disregard for the truth and (b) the false statement was necessary to the finding of probable cause. The court may conduct in camera review as appropriate.
     (10) After the warrant has been executed and returned to the issuing judicial officer, the validity of the warrant may be reviewed either as a defense to any notice of violation or by declaratory judgment action brought in court. The review shall be confined to the face of the warrant, affidavits, and supporting materials presented to the issuing judicial officer. If the owner or custodian of the place inspected submits a substantial showing by affidavit and accompanied by proof that (a) a statement included in the warrant was false and made knowingly and intentionally or with reckless disregard for the truth and (b) the false statement was necessary to the finding of probable cause, the reviewing court shall limit its inquiry to whether there is substantial evidence in the record supporting the issuance of the warrant and may conduct a de novo determination of probable cause.

NEW SECTION.  Sec. 10   Whenever any personal information from a public unmanned aircraft system has been acquired, no part of such personal information and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state or a political subdivision thereof if the collection or disclosure of that personal information would be in violation of this chapter.

NEW SECTION.  Sec. 11   No personal information collected on an individual or area other than the target that justified the issuance of a search warrant may be used, copied, or disclosed for any purpose. Such personal information shall be deleted as soon as possible, and in no event later than twenty-four hours after collection.

NEW SECTION.  Sec. 12   Personal information collected on any individual or area specified in the warrant shall be deleted within thirty days unless there is a reasonable belief that the personal information is evidence of criminal activity or civil liability related to the reason that allowed the use of the unmanned public aircraft system.

NEW SECTION.  Sec. 13   The disclosure or publication, without authorization of a court, by a court officer, law enforcement officer, or other person responsible for the administration of this section of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any personal information obtained as a result of such search warrant is punishable as a class C felony.

NEW SECTION.  Sec. 14   Any use of unmanned aircraft systems shall fully comply with all federal aviation administration requirements and guidelines.

NEW SECTION.  Sec. 15   By July 1st of each year, any judicial officer who has authorized the issuance of a search warrant or extension of a public unmanned aircraft system that expired during the preceding year or who has denied approval during that year shall report to the chief justice of the Washington supreme court or his or her designee the following information:
     (1) The fact that a warrant or extension was applied for;
     (2) The kind of warrant or extension applied for;
     (3) The fact that the warrant or extension was granted as applied for, was modified, or was denied;
     (4) The period of interceptions authorized by the order, and the number and duration of any extensions of the order;
     (5) The offense or purpose specified in the petition and the probable cause giving rise to such warrant or extension of such warrant; and
     (6) The identity of the applying state agency applicant or law enforcement officer, the agency making the application, and the judicial officer authorizing the petition.

NEW SECTION.  Sec. 16   By July 1st of each year, any law enforcement agency who applied for a criminal search warrant for the use of a public unmanned aircraft system shall report to the chief of the Washington state patrol or his or her designee the following information:
     (1) The information required by section 15 of this act with respect to each application for a search warrant or extension made during the preceding calendar year;
     (2) The general description of the information gathered under such search warrant or extension including:
     (a) The approximate nature and frequency of incriminating conduct gathered;
     (b) The approximate number of persons upon whom information was gathered; and
     (c) The approximate nature, amount, and cost of the manpower and other resources used in the collection;
     (3) The number of arrests resulting from information gathered under such search warrant or extension and the offenses for which arrests were made;
     (4) The number of trials resulting from such information;
     (5) The number of motions to suppress made with respect to such information and the number granted or denied;
     (6) The number of convictions resulting from such information and the offenses for which the convictions were obtained and a general assessment of the importance of the information; and
     (7) The information required by section 15 of this act with respect to search warrants or extensions obtained in the preceding calendar year.

NEW SECTION.  Sec. 17   By July 1st of each year, each state agency that applied for a search warrant or extension of a public unmanned aircraft system shall report to the governor or his or her designee the following information:
     (1) The fact that such a warrant or extension was applied for;
     (2) The kind of order or extension applied for;
     (3) The fact that the order or extension was granted as applied for, was modified, or denied;
     (4) The period of interceptions authorized by the order and the number and duration of any extensions of the order;
     (5) The identity of the applicant and state agency making the petition and the judicial officer authorizing the petition;
     (6) The probable cause giving rise to the issuance of the search warrant in the petition or extension of the warrant, including the conditions, object, activity, or circumstance that legally justified such inspection, testing, or collection of information;
     (7) The general description of the information gathered under such warrant or extension, including:
     (a) The approximate nature and frequency of the information gathered, collected, or inspected from such place, property, things, or persons;
     (b) The approximate number of persons upon whom personal information was gathered; and
     (c) The approximate nature, amount, and cost of the manpower and other resources used in the collection or inspection; and
     (8) If applicable, the identity of the judicial officer authorizing forcible entry, the identity of the law enforcement officer who assisted the agency official, and information justifying the issuance of the forcible entry order.

NEW SECTION.  Sec. 18   By December 1st of each year, the chief justice of the Washington supreme court or his or her designee, the chief of the Washington state patrol or his or her designee, and the governor or his or her designee shall transmit to the legislature a full and complete report concerning the number of applications for search warrants authorizing or approving operation of a public unmanned aircraft system or disclosure of information or data from the operation of a public unmanned aircraft system pursuant to this section and the number of search warrants and extensions granted or denied pursuant to this section during the preceding calendar year. Such report shall include a summary and analysis of all the data required to be filed with the Washington supreme court, the Washington state patrol, and the governor.

NEW SECTION.  Sec. 19   Excluding personally identifiable information, records required by sections 15 through 18 of this act shall be open to public disclosure under the Washington public records act, chapter 42.56 RCW.

NEW SECTION.  Sec. 20   The governing body of any locality permitting the use of public unmanned aircraft systems shall publish publicly available written policies and procedures for the use of public unmanned aircraft systems by the law enforcement agencies of such locality.

NEW SECTION.  Sec. 21   The governing body of any locality permitting the use of public unmanned aircraft systems shall, by ordinance, require the law enforcement agency of such locality operating a public unmanned aircraft system to maintain records of each use of a public unmanned aircraft system, including the date, time, location of use, target of data collection, type of data collected, the justification for the use, the operator of the public unmanned aircraft system, and the person who authorized the use.

NEW SECTION.  Sec. 22   The governing body of any locality permitting the use of a public unmanned aircraft system shall conduct an annual comprehensive audit on the operation of all public unmanned aircraft systems, including the law enforcement log book, corresponding emergency telephone calls, warrants, and other documentation of the justification for use and data collected. The audit shall be publicly available. The audit shall include:
     (1) The number of uses of a public unmanned aircraft system organized by types of incidents and types of justification for use;
     (2) The number of crime investigations aided by the use and how the use was helpful to the investigation;
     (3) The number of uses of a public unmanned aircraft system for reasons other than criminal investigations and how the use was helpful;
     (4) The frequency and type of data collected for individuals or areas other than targets;
     (5) The total cost of the public unmanned aircraft system; and
     (6) Additional information and analysis the governing body deems useful.

NEW SECTION.  Sec. 23   The governing body of any locality permitting the use of a public unmanned aircraft system shall, upon completion of the publicly available annual audit on the use of public unmanned aircraft systems, review the use of public unmanned aircraft systems and consider both the benefits and risks to privacy before authorizing the continued operation of a public unmanned aircraft system in such locality.

NEW SECTION.  Sec. 24   Sections 1 through 23 of this act constitute a new chapter in Title 10 RCW.

NEW SECTION.  Sec. 25   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.