SHB 2179 -
By Representative Smith
Strike everything after the enacting clause and insert the following:
"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."
Correct the title.
EFFECT: Makes the following changes:
Changes language in the intent section.
Broadens the definition of an "agency" subject to the restrictions
on government surveillance to include any entity or individual, whether
foreign or domestic, with which any governmental entity has entered
into any 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.
Changes the definition of "conduct surveillance" to provide that it
means to engage in or induce a third party to engage in the act of
collecting personal information.
Makes several changes to the definition of "personal information"
including broadening the definition of information that describes,
locates, or indexes anything about a person to include intellectual
property, trade secrets, proprietary information, and operational
information.
Changes the definition of an "extraordinary sensing device" to
provide it is 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.
Narrows exemptions from the definition of "conducting surveillance"
for certain kinds of monitoring and surveying; specifies that when an
agency accidentally or incidentally collects personal information
pursuant to such a monitoring or surveying operation: (1) The agency
must delete or deidentify the personal information as soon as
practicable, pursuant to a precise and limited retention schedule; (2)
the agency must comply with the annual reporting and data minimization
requirements of section 6 (4) through (6) of the act; and (3) any
personal information accidentally or incidentally collected may not be
introduced as evidence in any civil or criminal court proceeding,
except in a felony prosecution.
Provides that personal information collected pursuant to a criminal
search warrant on an individual who was not the target of the warrant
may not be disclosed or distributed outside of the agency that
conducted the surveillance, except: (1) To the court and counsel as
necessary for prosecuting the target or targets that justified the
issuance of the search warrant; and (2) as necessary for a purpose
authorized under the bill.
Requires an agency employee or authorized agent who authorizes
surveillance in emergency circumstances to provide written notice to
the head of the agency and to the prosecuting authority of any county
in which such surveillance has been authorized, within seventy-two
hours of authorizing the surveillance.
Waives the requirement that personal information incidentally
collected in an emergency operation be deleted within seventy-two
hours, if such information cannot reasonably feasibly be deleted
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.
Requires the agency to promptly provide to the prosecuting
authority in the county or counties where a surveillance operation is
occurring or has occurred the ability to review any data collected,
when surveillance is authorized by an agency employee or authorized
agent in exigent circumstances.
Eliminates a provision that addressed surveillance for the purpose
of regulatory enforcement of a permitted or licensed activity.
Removes the statement of the legislature's intent that a
determination by the attorney general, of whether a device is an
"extraordinary sensing device," be afforded the utmost deference.
Makes technical changes.