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:

(1) "Agency" means the state of Washington, its state and local agencies, political subdivisions, and their respective employees and agents, except the Washington national guard in Title 32 U.S.C. status.

(2) "Court of competent jurisdiction" means any district court of the United States, or a court of general jurisdiction authorized by the state of Washington to issue search warrants.

(3) "Extraordinary sensing device" means a sensing device attached to or used in conjunction with an aircraft that is operated without the possibility of human intervention from within or on such aircraft, together with its associated elements.

(4) "Governing body" means the council, commission, board, or other controlling body of an agency in which legislative powers are vested, except that for a state agency for which there is no governing body other than the state legislature, "governing body" means the chief executive officer responsible for the governance of the agency.

(5) "Personal information" means any information relating to a particular identified or identifiable individual including, but not limited to, information obtained from a particular vehicle or particular residence, including the curtilage thereof, relating to that individual. The information may be in the form of, but is not limited to:

(a) Images obtained from any part of the electromagnetic spectrum including, but not limited to, visible, ultraviolet, and infrared light; X-rays and other radiation; and radio waves;

(b) Sounds of any frequency, including infrasonic, audible, and ultrasonic frequencies; or

(c) Scents of any type, whether or not detectable by the human nose.

(6)(a) "Sensing device" means a device capable of remotely acquiring personal information from its surroundings.

(b) "Sensing device" does not include equipment whose sole function is to provide information directly necessary for safe air navigation or operation of a vehicle.

(2) No local agency shall procure an extraordinary sensing device without the explicit approval of the governing body of such locality, given for that specific extraordinary sensing device to be used for a specific purpose.

NEW SECTION.  Sec. 5.  Except as otherwise specifically authorized in this subchapter, it is unlawful for an agency to operate an extraordinary sensing device or use or disclose personal information about any person acquired through the operation of an extraordinary sensing device.

(a) Monitoring to discover, locate, observe, and prevent forest fires;

(b) Monitoring an environmental or weather-related catastrophe or damage from such an event;

(c) Surveying for wildlife management, habitat preservation, or environmental damage; and

(d) Surveying for the assessment and evaluation of environmental or weather-related damage, erosion, flood, or contamination.

(2) No agency or law enforcement officer may make any effort to identify an individual from the information collected by the operation or to associate any information collected by the operation with a particular individual, nor shall the information be disclosed to a third party unless that party agrees to be bound by the same restrictions. These restrictions shall not apply if there is probable cause that the information is evidence of criminal activity.

NEW SECTION.  Sec. 8.  (1) An extraordinary sensing device may be operated and personal information from the operation disclosed, if the operation and collection of personal information is pursuant to a search warrant issued by a court of competent jurisdiction, and the operation, collection, and disclosure are compliant with the provisions of this chapter.

(2) Warrants may not be issued for a period greater than ten days. Extensions may be granted, but 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.

(3) Within ten days of the execution of a search warrant, the officer executing the warrant must serve a copy of the warrant upon the target of the warrant, except if notice is delayed pursuant to this section.

(4) 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 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.

(5) 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.

(6) The governmental entity shall maintain a copy of the warrant.

(7) 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.

(8) Upon expiration of the period of delay of notification under subsection (4) or (7) 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 target of the warrant, together with notice that:

(a) States with reasonable specificity the nature of the law enforcement inquiry; and

(b) Informs the target of the warrant: (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) the provision of this section allowing the delay.

NEW SECTION.  Sec. 9.  (1) It is lawful under this section for any agency or law enforcement officer to operate an extraordinary sensing device and disclose personal information from the operation if:

(a) The agency or officer 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) Requires operation of an extraordinary sensing device before a warrant authorizing the interception can, with due diligence, be obtained; and

(iii) There are grounds upon which a warrant could be entered to authorize such operation; or

(b) The agency or officer reasonably determines that an emergency situation exists that:

(i) Does not involve criminal activity;

(ii) Presents immediate danger of death or serious physical injury to any person; and

(iii) Has characteristics such that operation of an extraordinary sensing device can reasonably reduce the danger of death or serious physical injury;

(c) The operation is part of a training exercise conducted on a military base and the extraordinary sensing device does not collect personal information on persons located outside the military base;

(d) The operation is for training, testing, or research purposes by an agency and is not intended to collect personal information without the specific written consent of any individual whose personal information is collected; or

(e) The operation is part of the response to an emergency or disaster for which the governor has proclaimed a state of emergency under RCW 43.06.010(12).

(2) Upon completion of the operation of an extraordinary sensing device pursuant to subsection (1)(b) through (e) of this section, any personal information obtained must be treated as information collected on an individual other than a target of a warrant for purposes of section 10 of this act.

NEW SECTION.  Sec. 10.  (1) Personal information collected during the operation of an extraordinary sensing device authorized under sections 7 through 9 of this act may not be used, copied, or disclosed for any purpose after conclusion of the operation for which the extraordinary sensing device was authorized, unless there is probable cause that the personal information is evidence of criminal activity.

(2) Personal information must be deleted, within thirty days if the personal information was collected on a target of a warrant authorizing the operation of the extraordinary sensing device and within ten days for other personal information, after there is no longer probable cause that the personal information is evidence of criminal activity that may be prosecuted. The foregoing shall only apply to the extent the personal information can be destroyed without destroying other evidence relevant to a pending criminal investigation or case. There is a presumption that personal information is not evidence of criminal activity if that personal information is not used in a criminal prosecution within one year of collection.

(a) The number of uses of an extraordinary sensing device organized by types of incidents and types of justification for use;

(b) The number of criminal or regulatory investigations aided by the use and how the use was helpful to the investigation;

(c) The number of uses of an extraordinary sensing device for reasons other than criminal or regulatory investigations and how the use was helpful;

(d) The frequency and type of data collected for individuals or areas other than targets;

(e) The total cost of the extraordinary sensing device;

(f) The dates when personal information and other data was deleted or destroyed in compliance with the act;

(g) The number of warrants requested, issued, and extended; and

(h) Additional information and analysis the governing body deems useful.

(2) For a state or local agency other than that in subsection (1) of this section, the agency must maintain records of each use of an extraordinary sensing device and each state agency, for any calendar year in which an agency has used an extraordinary sensing device, must prepare an annual report including, at a minimum in each case, 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.

(3) The annual reports required pursuant to this section must be filed electronically to the office of financial management, who must compile the results and submit them electronically to the relevant committees of the legislature by September 1st of each year, beginning in 2016.

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