AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA v. S.C. (CITY OF LOS ANGELES)Amicus Curiae Brief of Jerry HillCal.July 11, 2016SUPREME COURT COPY CASE NO. 8227106 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION,ope COURT Petitioners, FILED Vv. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, JUL 11 2016 COUNTY OF LOS ANGELES, Respondent, Frank A. McGuire Clerk COUNTY OF LOS ANGELES,the LOS ANGELES COUNTY SHERIFF’s PePuty DEPARTMENT,the CITY OF LOS ANGELES,and the LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest After a Decision by the Court of Appeal, Second Appellate District, Division Three, Case No. B259392 Los Angeles County Superior Court, Case No. BS 143004 (Hon. James C. Chalfant) APPLICATION FOR LEAVETO FILE AMICI CURIAE BRIEF OF SENATOR JERRY HILL IN SUPPORT OF PETITIONERS Jason D. Russell (SBN 169219) *Richard A. Schwartz (SBN 267469) 300 South Grand Ave., Suite 3400 Los Angeles, CA 90071 Tel.: (213) 687-5000 Fax: (213) 687-5600 Jason.Russell@probonolaw.com Richard.Schwartz@probonolaw.com Attorneys For Amicus Curiae Jerry Hill CASE NO. 8227106 IN THE SUPREME COURTOF THESTATE OF CALIFORNIA AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION, Petitioners, Vv. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, COUNTY OF LOS ANGELES, the LOS ANGELES COUNTY SHERIFF’S DEPARTMENT,the CITY OF LOS ANGELES,and the LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest After a Decision by the Court of Appeal, Second Appellate District, Division Three, Case No. B259392 Los Angeles County Superior Court, Case No. BS 143004 (Hon. James C. Chalfant) APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF OFSENATOR JERRY HILL IN SUPPORT OF PETITIONERS Jason D. Russell (SBN 169219) *Richard A. Schwartz (SBN 267469) 300 South Grand Ave., Suite 3400 Los Angeles, CA 90071 Tel.: (213) 687-5000 Fax: (213) 687-5600 Jason.Russell@probonolaw.com Richard.Schwartz@probonolaw.com Attorneys For Amicus Curiae Jerry Hill TABLE OF CONTENTS TABLE OF AUTHORITIES0200... cccceccccceescssssssernsssssresnitsansentearectisessesil APPLICATION FOR LEAVETO FILE AMICUS CURIAEBRIEF0.000.| APPLICATION FOR EXTENSION OF TIME o.....0...cccccccccssssssescssseseesssescesssstsiveeeeetteeeeeeec ] INTEREST OF AMICUS CURIAE...cccccccccccseccssesvvssessstisssssssesvinessistcssti cesseseo3 INTRODUCTION AND SUMMARYOF ARGUMENToo... cccccccsccccccesccccceeeeeeeseee4 LEGISLATIVE BACKGROUND...coccoccesssssesessuesttestsesvvstttecsescesessititttteeese 6 I. SB 34ceceecssessenesseeseetisssissanreesissetsiasesiissvessel6 IL. The California Public Records Act ..o..ccccccccccccssccccscestessccsesesesestteeeeeeeec I ARGUMENT0... cee cccccessessssssstssstseesavettts vnnsssurrmmoituntsenensssssiistissues12 I. ALPRData May BeDisclosed Pursuant To A CPRA Request Because CPRA Requests Are “Otherwise Permitted By Law” Under SB34.....00. 12 II. The California Legislature Did Not Intend To Modify The CPRA With SB SAeeestes cts cceseeteetesrsssnsiitessissiittanvessatnssenateastes eine15 A. Nothing In The Legislative History Of SB 34 Suggests ThatIt Exempts ALPR Data From Disclosure Pursuant To CPRA...... 16 B. SB 34 Promulgates Government Transparency Requirements That Are Inconsistent With Exempting Public Agencies From Disclosing ALPR Data...cscs essssstessees cesses esse teeeeeeee 18 C. SB 34 Creates Private Rights Of Action That Would Require Public Agencies’ Disclosure OfALPR Data... 0-ccccccccceecceec20 I. SB 34 Is Meant To Allow Public Oversight Of ALPR Systems. oo...eee21 CONCLUSIONooo.ieee cssssssssssttvitttiivinsscesssnnninssasssssssnsisiiteisssssatasistitetei 22 CERTIFICATE OF WORD COUNT ..0..ooiicccccccessssssessvssssssssevstivvvissttessessestitttttttttee 23 DECLARATION OF SENATORJERRY HILL IN SUPPORT OF HIS APPLICATION FOR AN EXTENSION OF TIME... 0ccccccccccsccsesesssssecseessssescceesesetctteeeeeeee 24 CERTIFICATE OF SERVICE .oo......cccessseessssssssssssessnvvssesssevsvssiasiisvieeeesssistvatittteee 29 TABLE OF AUTHORITIES CASES CBSInce. v. Block, 42 Cal. 3d 646 (1986)occcceecese esse ieeseer ces titetei 11, 12, 22 Commodore HomeSys., Inc. v. Superior Court, 32 Cal. 3d 211(1982) oocccceeeceeccsesessuntvtsttesariessntetse te18 Long BeachPolice Officers Ass'n y. C.ity ofLong Beach, 136 Cal. Rptr. 3d 868 (2012), aff'd, 59 Cal. 4th 59, 60 (2014)oe16 Long BeachPolice Officers Ass'n v. City ofLong Beach, Aff'd 59 Cal. Ath 59 (2014)eeeceecssesventtttetteesseseseescsee te1] People v. Jimenez, 80 Cal. App. 4th 286 (2000) oooccssssssssesveneasertecestscesses 15 People v. Superior Court, 199 Cal. App. 3d 494 (1988) ooo. ccecccccsseseseenes tects seesteste 16, 18 Silver v. Brown, 63 Cal. 2d 841 (1966) oooieee ees cess eetsvstt teestesti 16, 18 Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991) oooeessesssnunnvrmmmnesstitects 11 U.S. Dept. ofJustice v. Reporters Comm. for FreedomofPress, 489 US. TA9 (1989)ooocccestcceetesseesestevtetstesstasivsitessssvisteeseeestete I] Edelstein y. City and County ofSan Franci sco, 29 Cal. 4th 164 (2002)ooeeeccsscetttecsssssvemmstessnsssinese2 United States v. Jones, W328. Ct 945 (2012).cece etteeesserermmmtnsessstivsssesetinite6, 7 STATUTES, RULES, REGULATIONS 29-A MRSA. § 2IDT-AQQ) ooo cocccccsseseettesesessssttttsestststttnsttstteesescestasesivitttt 9 Ark. Code Ann. §§ 12-12-1801 ef SOQ. oieeectterete tebe nettevitetttritteriiteteeere 9 Cal. Civ, Code § 1798.29oooententttstrerttrttttttseeessitestttsttit 10 Cal. Civ. Code § 1798.90.51 ooo ciccccecccccssesseessstttssttsset ite6, 10, 19 Cal. Civ. Code § 1798.90.52oecccccssssssssstsetsestiti 10, 19 Cal. Civ. Code § 1798.90.93 ......ccccccccccessssssseveritiesstsssseet6, 10, 19 Cal. Civ. Code § 1798.90.54ooocccscssssssssssttsttti te6, 15 Cal. Civ. Code § 1798.90.55 ........cccccccccessussssssstsessstie ssepassim Cal. Civ. Proc. Code § 2025.270ooo...6, 15 Cal. Const. Article 1, § 3(b)(V) ecco ceccccceecccsmvesssssssetvesstsivvvvttittt 12 Cal. Gov't Code § 6253 0... cccccctsstsessittiissisesstintniesittivvit 5 Cal. R. Ct. 8.520(f)(2)..000o.o oc cceccccsessssestttttsrsttttssstttttttestttttscsssestset 1,2 Cal. R. Ct. 8.60(b).. ieeeceececcsessssssssttttinsnstttttinnnsiiistt 1,2 Colo. Rev. Statute § 24-72-1138occusssssnevetnteeiti 9Pla. Stat. 316.0777iccsssssststittititieviessssrvetnssittui i 9 Minn. Stat. § 13.82 020... ccccccccssssssssseessnsiunisenvesnsssassi 9 Minn, Stat, §13.824 oii oc occccccssssssssssssvsvesscessssssussssssessnneesessussessssssaneteeeeeeeeee 9 Minn.Stat. § 26.8472 oooeeeeeccssessssstetessssssssnnasvetesetssteste9 N.C. Gen. Stat. §§ 20-183.22 C1 8G. oocoeccccccccccerssssssssssssss tess etstee9 Tenn. Code Ann. § 55-10-3022... oeccccceecsececsssssssstessvttttennsieitessstees9 Utah Code Ann. §§ 41-6a-2001 ef 8g. o.oo ccecccsccssttrcrteetse esti9 OTHER AUTHORITIES Am.Civil Liberties Union, You Are Being Tracked: How LicensePlate Readers Are Being Used to Record Americans’ Movements 12 (2013). 7 Assemb. Comm. on Appropriations, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (Aug. 18, 2015) o.oo. ccsssssssssvevetteesserttsesestess17 Assemb. Comm. on ConsumerProtection & Privacy, 2015-2016 Reg. Sess., Rep. on S.Bill No. 34 (July 6, 2018) oo ecccccccccsssssssstsetesseessesetsetse 17 Assemb. Comm.on Transportation, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (June 19, 2015)cececcs tees ever testestees6, 8, 17, 22 Assemb. Comm.on Transportation & Privacy & Appropriations, 2015-2016 Reg. Sess., Analysis of S. Bill No. 34 (Aug. 21, 2015) occ. 17 Assemb. Comm. on Transportation & Pri vacy & Appropriations, 2015-2016 Reg. Sess., 3d Reading Analysis of S. Bill No. 34 (Sept. 2, 2015)....... 11,17 Adam Goldman & Matt Apuzzo, With Cameras, Informants, NYPD Eyed Mosques, Associated Press (Feb. 23, 201 2), http://www.ap.org/Content/AP-In-The- News/201 2/Newark-mayor-seeks-probe-of-NYPD-Muslim-spyingee ebeeceveeeevnreeeees 7 Brian A. Reaves, U.S. Department of Justice, Local Police Departments, 2013: Equipment and Technology 4 (2015) oo... cccccccssssetsse ee7 Jeremy Gillula & Dave Maass, What You Can Learn from Oakland’s Raw ALPRData, Electronic Frontier Foundation (Jan. 21, 2015) https://www.eff. org/deeplinks/2015/01 /what-we-learned-oakland-raw-alpr-data (last visited June 27, 2016) oo oo.esscssessseeseeesssrsvvsssssssssseeeeeessessssessettttitieeee 20 Robert Faturechi, Use oflicense plate Photo databasesis raisingprivacy concerns, L.A. Times, May 16, 2014, http://www.latimes.com/business/la-fi-law- enforcement-contractors-201405 1 8-storyAtmbccceescece. 7 S. Comm. on Appropriations, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (May 4, 2015)... ceeccesseeseisssstttitittisssniviensiitsstite17 S. Comm.on Judiciary, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (Apr. 13, 2015). ccccssessssssnsnssessissvervsssssssssssnisseesssessssvestitittteeeee 17 S. Comm. on Transportation & Housing, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (Apr. 2, 2015)... ccceccecccsssssesssstesereessesessessseeseeeseeeeeeeecc 17 S. Rules Comm., Office of S. Floor Analyses, 2015-2016 Reg. Sess., 3d Reading Analysis of S. Bill No. 34 (May6, 2015)eeeececeecseessststsetsevarecaseeeterees 17 S. Rules Comm., Office of S. Floor Analyses, 2015-2016 Reg. Sess., Rep. on S. Bill No.34 (Sept. 3, 2015)... eeceeccecccccccssssessnsnssesssssssmsssssstseanressssvessreseseeteeesteeceecc 17 William Strunk Jr. & E.B. White, The Elements ofStyle (4th ed. 2000) 0.0... cece. 14 ill TO THE HONORABLE CHIEF JUSTICE TANI G. CANTIL-SAKAUYE AND ASSOCIATE JUSTICES OF THE SUPREME COURTOF CALIFORNIA: APPLICATION FOR LEAVETO FILE AMICUS CURIAE BRIEF Pursuant to California Rule of Court 8.520(f), Senator Jerry Hill seeks leave to appearas anticus curiae in this matter. Senator Hill respectfully requests leave to file the attached amicusbrief in support of the petition for writ of mandamus submitted by the American Civil Liberties Union Foundation of Southern California and the Electronic Frontier Foundation. This amicusbrief is submitted by Senator Jerry Hill, the lead author of SB 34 (chapter 532 of the Statutes of 2015) (“SB 34”), and is intended to provide the Court with an understanding ofthe legislative intent behind its provisions, as understood by the California legislature and the author of the bill. Senator Hill seeks to provide the Court with the necessary context and history surrounding the passage of SB 34,especially given the erroneousinterpretation of some ofits provisionsthat Respondents and amicus curiae have advanced in connection with this appeal. In accordance with California Rule of Court 8.250(f)(4), no party or counsel for any party, other than counsel for amicus, have authored the proposed brief in wholeor in part or funded the preparationofthebrief. APPLICATION FOR EXTENSION OF TIME Pursuant to California Rule of Court 8.60(c), proposed amicus curiae, SenatorJerry Hill, respectfully requests that the Court grant an extension of time to allow the filing of this amicus brief. Filed herewith is the Declaration of Senator Hil] (“Hill Declaration’), setting forth the reasons this application should be granted. Amicuscuriae briefs must be served and filed 30 days after the last brief of the parties is filed or could have been filed, although the Court mayallow later filing at the Chief Justice’s discretion. See Cal. R. Ct 8.520(f)(2), see also Cal. R. Ct. 8.60(b) (the Chief Justice may extend thetimeto serve and file an amicus brief for good cause). The Court has granted applicationsforthe late filing of amicusbriefs, even when the only reason an application was submitted late was because counselfor the amicus curiae was busy. See, e.g., kdelstein vy. City & CountyofSan Francisco, 29 Cal. 4th 164, 172 (2002) (granting application for late filing of an amicusbrief and denying motion to strike). In this matter, Petitioners’ reply brief wasfiled on April 1, 2016. Asa result, this amicus brief would have been due on May 2, 2016. See Cal. R. Ct. 8. 520(f)(2). However, the amicusbrieffiled by the League of California Cities and the California State Association of Counties in support of Respondents wasfiled on April 28, 2016, and this proposed amicus brief was written primarily to respondto the erroneousassertionsin that amicus brief. (See Hill Decl. 2.) Because Senator Hill was unawareofthe interpretation that the League of California Cities and the California State Association of Counties had applied to SB 34 until they filed their amicus briefs in this matter, Senator Hill was unaware ofthe need to set the record straight until very recently, (See Hill Decl. § 2.) This amicus brief was prepared as quickly as possible under the circumstances, especially given that Senator Hill was unawareof the League of California Cities and the California State Association of Counties’ amicus brief until mid-May, and only first contacted counsel in connection with this matter on or around June 9, 2016. (See id. § 3.) Senator Hill therefore respectfully requests that the Court extend the time within which an amicusbrief may be filed by 59 days to allow the filing ofthis amicus brief. No prior extensions have been requested (see id. § 4), and no prejudicewill result from granting this extension. In sum, Senator Hill respectfully requests that the Court grant this application to extend the timeto file this amicus brief so that Senator Hill can provide the Court with an accurate statement ofthe legislative intent behind SB 34 before reachingits decision on the pendingPetition. INTEREST OF AMICUS CURIAE SenatorJerry Hill is the lead author of SB 34, the primary California statute concerning the collection, use, sharing, sale, and transfer of automated license plate reader technology. The government’s collection and dissemination ofthat datais at the core of this case. Senator Hill serves in the California Senate representing California’s 13th District. Prior to his election to the Legislature, Senator Hill has served as a Mayor of the city of San Mateo and authored a City of San Mateo ordinancethat regulated the sale of tobacco andrestricted smoking in public places. SenatorHill writes not only in the interest ofassi sting the Court to understand the purpose andintent of SB 34 more clearly, but also to protectthe civil liberties and oversight of government surveillance that California sought to enhancein enacting SB 34. INTRODUCTION AND SUMMARY OF ARGUMENT Petitioners the ACLU Foundation of Southern California and the Electronic Frontier Foundation (‘‘Petitioners”) filed a California Public Records Act (“CPRA”) request for one week’s worth of data derived from automated license plate scans collected by the County of Los Angeles Sheriff’s Department and the City of Los Angeles Police Department. See Pet’rs’ Opening Br. On the Merits at 9-10. That surveillance data was collected using Automated License Plate Reader (“ALPR”) technology,a relatively new tool used by law enforcement agenciesand private parties throughout California with major implications for the privacy and autonomy of millions of Californians. Respondents, the County of Los Angeles, the Los Angeles County Sheriff’s Department, the City of Los Angeles, and the Los Angeles Police Department (“Respondents”) denied that request because, amongother reasons, they claim that SB 34 evidences the Legislature’s intention to exempt ALPRdata from disclosure under CPRA. (See Answer Br. On the Merits at 19-22.) However, the Legislature did not modify CPRA with SB 34. In light of the unique and persistent dangersarising frompublic agencies constantly monitoring Californians’ movement, the California legislature enacted SB 34 to impose guidelines on the collection, sharing, and use of ALPR data. Relevant here, the text of Civil Code Section 1798.90.55(b), provides that “a public agencyshall notsell, share, or transfer ALPR information, except to another public agency, and only as otherwise permitted by law.” Cal. Civ. Code § 1798.90.55(b) (emphasis added). Thelast clause providesthat SB 34 allows transfers of ALPR data only whenspecifically authorized by law. For example, the CPRA providesthat citizens may seek any public records subject to limited exemptionsthat are specified in the CPRAitself. See Cal. Gov't Code § 6253. Read as a whole, SB 34 imposeslimits on public agencies’ ability to disclose ALPR datato third parties, but does not purport to modify any other lawsthat might authorize or require such disclosures because those disclosures are “otherwise permitted by law.” Because SB 34 does not purport to modify the CPRA,and specifically provides that transfer of ALPR data may be permitted where “otherwise permitted by law,” there is no question that Petitioners’ request under the CPRAisnot prohibited by SB 34. Such CPRA requests are consistent with the overall purpose of SB 34: to increase the transparency and oversight of public agencies’ retention and use of ALPR data. However, Respondents and amici Leagueof California Cities and California State Association of Counties (“Cities and Counties”) argue that SB 34 prohibits a public agency from ever disclosing ALPR data except to another public agency. Not so. Cities and Counties would have this Court erroneously read the “‘and as otherwise permitted by law”clause out of SB 34. Onthe contrary, the Court should give effect to the legislative intent, which wasto provide Californians with the necessary tools to monitor their government’s collection and use ofthis highly informative and sensitive data. Thatlegislative intent is evidenced by the terms of SB 34 itself. For example, SB 34 providesthat public agencies must promulgate privacy policies regarding their use and sharing of ALPR datain order to allow public supervision of these tools. See Cal. Civ. Code §§ 1798.90.51(b)(2)(D): 1798.90.53(b)(2)(D). Likewise, SB 34 providesfor a private right of action whenever a person is harmed through the disclosure of ALPR data. See Cal. Civ. Code § 1798.90.54. A subpoenaissued by such a private litigant may require production of ALPR data, and SB 34 doesnot purport to modify that fundamentalrule ofdiscovery. See Cal. Civ. Proc. Code § 2025.270. Both ofthose provisions would make no senseifthe Legislature meantto exempt ALPR data from disclosure to anyone but anotherpublic agency. Becausethe Legislature did not intend for the radical and dangerous interpretation of SB 34 advancedbythe Respondents and amici, the Court should give SB 34its proper interpretation andeffect, and allow Petitioners to proceed with their CPRA request. LEGISLATIVE BACKGROUND L SB 34 In 2015, the California Senate was concerned with the growing threat to privacy andcivil liberties posed by automated license plate reader technology and the widespread adoption and use of such technologies by public and private entities. See Assemb. Comm. on Transp. 2015-2016 Reg. Sess., Rep. on S. Bill No. 34, at 2 (June 19, 2015). Pervasive and persistent location-tracking technologies raise serious constitutional questions aboutthe privacy ofcitizens and theirright to be free from constant governmentsurveillance under the Fourth Amendment. See United States v. Jones, 132 8. Ct. 945, 963 (2012) (citing concerns raised by automated records of motorists passing through toll roads) (Sotomayor, J., concurring). In recent years, several states have raised the stakes on the need to control and monitor ALPR systems. In 2013, 17% oflocal police departments were using ALPR technology, including a majority of those serving a population of 25,000 or more: that numberissteadily increasing. See Brian A. Reaves, U.S. Dep’t ofJustice, Local Police Departments, 2013: Equipment and Technology4 (2015); Am. Civil Liberties Union, You Are Being Tracked: HowLicense Plate Readers Are Being Used to Record Americans’ Movements 12 (2013). ALPR technology provides law enforcement a powerfultool to track citizens’ movements and behavior, and that poweris “only limited by the officer’s imagination.” See id. at 13. For example, in New York, police officers have used ALPR data aroundlocal mosquesto create a record of the identities of each attendee. See Adam Goldman & Matt Apuzzo, With Cameras, Informants, NYP]) Eyed Mosques, Associated Press, Feb. 23, 201 2, http:/Awww.ap.org/Content/AP-In-The- News/2012/Newark-mayor-seeks-probe-of-NYPD-Muslim-spying. Such ongoing and persistent surveillance raises the exact kinds of Fourth Amendment concernsthat Justice Sotomayorraised in Jones. See 132 S. Ct. at 963-64. ALPRdata abuseincludes contractual relationships between police departments and for-profit companies. For example, in 20] 3, the Tempe, Arizonapolice department was offered free ALPR scanners from Vigilant Solutions, a company that collects municipalfines, in exchange for agreeing to pursueat least 25 Vigilant-provided warrants per month. See Robert Faturechi, U/se oflicense plate photo databasesis raisingprivacy concerns, Los Angeles Times, May 16, 2014, http://www. latimes.com/business/la-fi-law-enforcement-contractors-201 40518- story.html. Likewise, before SB 34 was enacted, a private investigation revealed that private detectives could easily gain access to confidential license plate data by paying public agencies. See id.; (see also Hill Declaration Ex. 1 (Sen. Hill, sponsor ofS. Bill No. 34 (2015-2016 Reg. Sess.)), letter to Gov. Brown. Sep. 8, 2015) (“[ALPR] can make it easy for anyone, whetherit’s the police, a private company,or an individual, to track and monitor the whereabouts of any person.”)). Without a statutory requirement to disclose the nature and use of such ALPR systems, the public has no way of knowing,let alone controlling, whether public agencies use advanced surveillance techniques on behalf of privateentities. The majority of California’s public agencies that use ALPR technology did not have any kind of usage or privacy standards to govern the use or maintenance of that data as late as 2015. See Assemb. Comm. on Transp., 2015-2016 Reg. Sess., Rep. on S. Bill No. 34, at 2 (June 19, 2015) (“This bill will put in place minimalprivacy protections by requiring the establishment of privacy and usageprotectionpolicies. . . .”). The potential for abuse of ALPR systems and data, along with the potential consequencesof a data breach of such sensitive information, spurred the Legislature to action. Thus, the Legislature enacted SB 34 to protect ALPR information from mishandling and abuse, including the sale of such sensitive data to third parties. Through SB 34, California joined a nationwide movementto introduce legislation that would require ALPR operatorsto “institute reasonable usage and privacy standards,” including specific requirements regarding data managementand disclosure. | Pursuant to SB 34: ° A public agency may notsell or share ALPR data, except as specifically permitted by law. Cal. Civ. Code § 1798.90.55(b). ' See Ark. Code Ann. §§ 12-12-1801 ef seg. (prohibiting use of ALPRs by individuals,partnerships, companies, associationsorstate agencies, with exceptionsfor limited use by law enforcement, parking enforcement entities or for controlling access to secure areas; prohibits data from being preserved for more than 150 days); Colo. Rev.Stat. § 24-72-113 (requiring that video orstill imagesobtained bypassive surveillanceby governmentalentities be destroyed within three years after the recording of theimages, with exceptions allowing retention ofpassive surveillance records required tobe created underfederal law); Fla. Stat. 316.0777 (creating a narrow exemption topublic records requests but only for information thatis personally identifying); 29-AM.R.S.A. § 2117-A(2) (prohibiting the use of ALPR systems except for certain publicsafety purposes andproviding that data collected is confidential and may be used onlyfor law enforcement purposes); Md. Public Safety Code § 3-509 (requiring police toadopt data access procedures, training, and an audit process, and explicitly providingthat ALPR dataare not subject to disclosure under the Maryland Public InformationAct), Minn.Stat. §§ 13.82, 13.824, 626.8472 (requiring the maintenance of a publiclog recording the uses of such data, maintenance and the auditing of such records,written procedures governing accessto the data, and requiring certain notificationwhensetting up readers); N.H. Rev. Stat. Ann. §§ 261.75-b, 236.130 (prohibiting theuse of automatic license plate recognition systemsor vehicle surveillance except inspecific circumstances unless specifically authorized by statute); N.C. Gen. Stat§§ 20-183 .22 ef seg. (requiring state or local law enforcement agencies to adopt awritten policy governing data retention and sharing of data from ALPR systemsinvolving training, supervision, data security, audits and reports of system use andeffectiveness; limiting retention of ALPR data to no more than 90 days; and explicitlyproviding that data obtained by the system is confidential and not a public record);Tenn. Code Ann. § 55-10-302 (providingthat any captured automatic license platedata collected by a government entity may not be stored for more than 90 days unlessthey are part of an ongoing investigation, and that the data be destroyedat theconclusionofthe investigation); Utah Code Ann. §§ 41-6a-2001 ef seg. (providingthat ALPR data may only be shared in aggregated form withoutpersonally identifyinginformation). . Any data collected through ALPRare subject to California’s Data Breach Law. Cal. Civ. Code § 1798.29. ° ALPRdata must be protected with reasonable security safeguards in order to ensureits integrity and to protect the data from unauthorized access or disclosure. Cal. Civ. Code §§ 1798.90.51: 1798.90.53. ° Operators and end-users of ALPR technology must adopt and implement a privacy and use policy. Cal. Civ. Code §§ 1798.90.51; 1798.90.53. ° Operators of ALPR technology must keep a record of ALPR dataaccess, including the date and time the information was accessed, the name ofthe person whoaccessed the data and the purposefor accessing the data, to ensure that ALPRdata is accessed only for justified purposes. See Cal. Civ. Code § 1798.90.52.° ° A public agency that considers purchasing ALPR systems mustprovide an opportunity for public commentat a regularly scheduled public meeting of the governing body ofthe public agency before the adoption ofthe program. See Cal. Civ. Code § 1798.90.55. SB 34’s various provisions, including the requirement to promulgate privacy anduse policies, plainly demonstrate the Legislature’s intention to ensure the right of the public to conduct oversight and hold their governmental agencies accountable (cont ‘dfromprevious page) “A public agencyshall not sell, share, or transfer ALPR information, except to another public agency, and only as otherwise permitted by law.” Cal. Civ. Code § 1798.90.55(b). for their use of ALPR technologies. See Assemb. Comm. on Transp. & Privacy & Appropriations, 2015-2016 Reg. Sess., 3d Reading Analysis of S. Bill No. 34, at 2, 7 (Sept. 2, 2015). Put simply, the legislative intent wasto “institute a number of usage and privacy standardsfor the operation of ALPR,”“establish a minimalset of privacy standards for personal data collected,” and “to address the concern that existing law is silent on how government agencies manage and protect the ALPR data.” See id. IL The California Public Records Act The California Legislature in 1968, recognizing that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every personin this state,” enacted the California Public Records Act, which grants access to public records held by state andlocal agencies. The act broadly defines “[p]ublic records” as including “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency”... Long BeachPolice Officers Ass’n v. ( ‘tty ofLong Beach, 59 Cal. 4th 59, 66-67 (2014) (citations and internal quotation marks omitted). Courts interpreting the CPRA have further emphasized that its primary purposeis to give the public an opportunity to monitor the functioning of their government. See, e.g., U.S. Dept. ofJustice y. Reporters Comm. for FreedomofPress, 489 U.S. 749, 750 (1989) (stating that the public interest lies in whether the information is “a record of what the [g]overnmentis up to”): Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1344 (1991) (“accessis powerin its purest form’), CBSInc. v. Block, 42 Cal. 3d 646, 651 (1986) (“access permits checks against the arbitrary exercise ofofficial powerandsecrecy in the political process’”’). The CPRAwasfurther enshrined in the California Constitution through Proposition 59. See Cal. Const.art. I, § 3(b)(1) (“The people have the right of access to information concerning the conductofthe people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agenciesshall be open to public scrutiny.”). Pursuant to Proposition 59, any legislation curtailing the public’s right of access,including the right to access government recordsset forth in the CPRA, must be justified with explicit and extensive factual findings. See id. § 3(b)(2). Relevant here, Proposition 59 provides that SB 34 should be interpreted as consistent with CPRA if possible because “a statute, court rule, or other authority .. . shall be broadly construedif it furthers the people’s right of access, and narrowly construedifit limits the right of access.” /d. Because California has presumedthat the public may access governmental records, new legislation that would diminish the public’s right of access must be explicitly and extensively justified. /d. (“A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right ofaccessshall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.”’). ARGUMENT I. ALPRData MayBe Disclosed Pursuant To A CPRA Request Because CPRA Requests Are “Otherwise Permitted By Law” Under SB 34 As discussed supra, the California Legislature enacted SB 34 out of concern for the potential dangers that could arise from the misuse of ALPR data. Apparently, the Legislature was notalone in its concern. Petitioners filed a CPRA request for one week’s worth of ALPR data from Respondents. (See Pet’rs’ Opening Br. On the Merits at 9-10.) Petitioners’ request was denied underthe pretensethat all ALPR data is part of an ongoing law enforcement investigation, and is therefore exempt from disclosure under the CPRA. (See Answer Br. On the Merits at 4-5.) Respondents also claimed that SB 34 demonstrated the Legislature’s intent to exempt ALPR data from disclosure under CPRA. However, because Petitioners’ duly filed CPRA request for ALPRdatais “otherwise permitted by law,” SB 34 does not preclude Respondents from providing the requested records. See Cal. Civ. Code § 1798.90.55(b). Taking an even more extremeposition than the Respondents, amici Cities and Counties contend that SB 34 precludes any transfer of ALPR data at all, unless it is to a public agency. (See AmicusBr. of Leagueof California Cities and the California State Association of Counties at 19.) Theyignore the language of Civil Code Section 1798.90.55(b) following the word “agency,” in order to contendthat Respondents “cannot ‘share or transfer’ ‘data collected throughthe use of an ALPR system’”to the public under any circumstances. (See id. at 21.) Evenin thesituation presented here, wherePetitioners seek exactly what SB 34 wasenacted to require-i.e., public oversight of the use of ALPR data-the Cities and Counties claim that they should be exempt from disclosing ALPR data because ofSB 34. The Court should not take the Cities and Counties’ bait. Instead, the Court should begin with a readingofthe statute at issue. Admittedly, Civil Code Section 1798.90.55 is not a model of clarity. It provides: a public agency shall not sell, share, or transfer ALPR information, except to another public agency, and only as otherwise permitted by law. Cal. Civ. Code § 1798.90.55. Atfirst blush, one might assume that transfers of ALPR data to public agencies are qualified by the phrase “and only as otherwise provided by law.” However, the commafollowing the word “agency”precludesthat interpretation because the comma would be superfluous and grammatically incorrect. “Modifiers should come, if possible, next to the words they modify. If several expressions modify the same word, they should be arranged so that no wrongrelation is suggested.” William Strunk Jr. & E.B. White, The I:lementsofStyle 30 (4th ed. 2000) (contrasting “She only found two mistakes” with “She found only two mistakes”). Applying that basic rule of construction here, if the Legislature had intendedto restrict the sharing of ALPR data to public agencies, it would have written “a public agency shall notsell, share, or transfer ALPR information except only to public agencies and as otherwise permitted by law.” Rather, the Legislature separated the “only” from the “except to another public agencyclause,” and used the conjunctive “and” to denote another instance ofexceptionsto the default prohibition on disclosure. Thus, the term “only”could be read as a modifierof the phrase “as otherwise permitted by law” to denote that disclosures to others apart from public agencies would only be permitted where otherwisespecifically authorized by existing law. Because that result is consistent with the legislative intention behind SB 34, the Court should concludethat Section 1798.90.55 provides for that transfers of ALPRdata are prohibited “except to public 14 agencies, and [to others but] only as otherwise provided by law.” Indeed, the California Constitution requires the Court to adoptthis interpretation. See Cal. Const. art. I, § 3(b)(2) (“‘a statute, court rule, or other authority .. . shall be broadly construedifit furthers the people’s right of access, and narrowlyconstruedifit limits the right of access”), Thus, SB 34 may beread to allow the disclosure of ALPR data through a statutory mechanism like the CPRA becausethat disclosure would be specifically “permitted by law.” The CPRA authorizescitizensto request government records through a legally authorized statutory mechanism, and SB 34 doesnot purport to change that rule. Similarly, a private litigant is lawfully permitted to issue a subpoena for ALPR data, which makessensegiven that SB 34 also provides individuals with a right of action for any harm resulting from a misuse of ALPR information. See Cal, Civ. Code § 1798.90.54; Cal. Civ. Proc. Code § 2025.270. SB 34 does not purport to modify that fundamental rule of discovery. SB 34 should be interpreted consistently with respect to CRPArequests so that SB 34 fits within that statutory scheme, and doesnot act as a covert and unannounced blanket exemption to the public’s constitutional rights. See People v. Jimenez, 80 Cal. App. 4th 286, 291 (2000) (“A court must construe a statute in a way that avoids aninterpretation that would leadto absurd consequences.”) (internal quotation marks omitted). I. The California Legislature Did Not Intend To Modify The CPRA With SB 34 Given the lack ofclarity in the “and only as otherwise permitted by law” clause in Civil Code Section 1798.90.55, the Court should look to the legislative history 15 behind the passage of SB 34 to conclude that no modification of the CPRA wasintended. “Statutory exemptions from compelled disclosure under the CPRAare narrowly construed.” See Long Beach Police Officers Ass’nv. City ofLong Beach, |36 Cal. Rptr. 3d 868, 875 (2012), aff'd, 59 Cal. 4th 59, 60 (2014) (examiningthe legislative history of a statute that exemptspolice personnel records from disclosure to conclude that the Statute did not preclude a CPRA requestfor the names of police officers involved in a highly publicized shooting). Even if the Court did conclude that the language of SB 34 supports the Cities and Counties’ interpretation, it would nonetheless be required to reach the conclusion that SB 34 does not modify CPRA because “[t}heliteral meaning of the wordsofa statute may be disregarded to avoid absurd results or to give effect to manifest purposesthat, in the light ofthe statute’s legislative history, appear from its provisions considered as a whole.” See Silverv. Brown, 63 Cal. 2d 841, 845 (1 966) (citations omitted); People vy. Superior Court, 199 Cal. App. 3d 494, 498 n.4 (1988) (holding that ambiguity is not required before resorting to legislative history). A. Nothing In The Legislative History OfSB 34 Suggests That If Exempts ALPR Data From Disclosure Pursuant To CPRA Here, it is readily apparentthat the Legislature did not intend for SB 34 to modify the CPRA. Unlikestates that had specifically chosen to exempt such ALPR records from their respective public records acts,” in enacting SB 34, the California Legislature did not discuss or explicitly provide for any modification of the standard set forth in the CPRA. During four Legislative policy committee sessions, two Legislative 3 Yy See supra, n.2. fiscal committee sessions, and on both the Senate and Assembly floors, no legislator discussed whether ALPRinformation should be exempt from public disclosure under the Public Records Act.” Moreover, had the Legislature intended to modify the CPRA with SB 34, it would have had to makeexplicit factual findingsto justify that modification. Under Proposition 59, any statute that narrows the public’s right to access public records must be justified with extensive factual findings. See Cal. Const. art. I, 8 3(b)(2) (requiring that the Legislature must make explicit factual findings justifying a statute that purports to narrow public records subject to disclosure under CPRA). Butsince the Legislature never even contemplated passing a bill that would amend the California Constitution to insulate government agencies from public oversight, no suchfactual findings are included in SB 34. Theonly inferenceleft to draw is that the Legislature intended SB 34 to provide for public oversight on government agencies’ abilities to freely disclose or sell * See Assemb. Comm. on Transp. & Privacy & Appropriations, 2015-2016 Reg. Sess., 3dReading Analysis of S. Bill No, 34 (Sept. 2, 2015); Assemb. Comm. on Transp.,2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (June 19, 2015), S. Rules Comm., Off.of S. Floor Analyses, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (Sept. 3, 2015);Assemb. Comm. on ConsumerProtection & Privacy, 2015-2016 Reg. Sess., Rep. onS. Bill No. 34 (July 6, 2015); S. Comm.on Transp. & Hous., 2015-2016 Reg. Sess.,Rep. on S. Bill No. 34 (Apr. 2, 201 5); S. Comm. on Judiciary, 2015-2016 Reg. Sess.,Rep. on S. Bill No. 34 (Apr. 13, 2015), S. Comm. on Appropriations, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 (May 4, 2015); S. Rules Comm., Off. of S. Floor Analyses, 2015-2016 Reg. Sess., 3d Reading Analysis of S. Bill No. 34 (May 6, 2015); Assemb. Comm.on Appropriations, 2015-2016 Reg. Sess., Rep. on S. Bill No.34 (Aug. 18, 2015); Assemb. Comm. on Transp. & Privacy & Appropriations, 2015-2016 Reg. Sess., Analysis of S. Bill No. 34 (Aug. 21, 2015). 17 ALPRdatato third party data brokers, and notto affect the constitutional right of Californians to access and review governmentalrecords. B, SB 34 Promulgates Government Transparency Requirements That Are /nconsistent With Exempting Public Agencies rom Disclosing ALPR Data Likewise, the overall legislative package included with SB 34 demonstrates the Legislature’s intent to leave ALPR data accessible pursuant to CPRA requests. The California Legislature specifically stated that SB 34 would promote transparency in the use of ALPR systems andthe sharing of ALPR data. (See Hill Declaration Ex. 1 (Sen. Hill, sponsorofS. Bill No. 34 (2015-2016 Reg. Sess.), letter to Gov. Brown, Sep. 8, 2015 {| 6.) SenatorITill explained that the prohibition against public agencies’ disclosure was meant to “prohibit[] public agencies from selling the data collected by the technology because data collected with publicly funded technology that is intendedto help fight crime should not he made available to benefit businesses using automated license plate readersfor commercial purposes.” Id. (emphasis added); see also Assemb. Comm. on ConsumerProtection and Privacy, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34 at 4 (July 6, 2015) (“Thisbill is intended to bring greater transparency to the use of ALPR systems... .”).° The Legislature said nothing about modifications to CPRA. * The Hill Declaration andhis letter to Governor Brownisa significant reflection of the legislative intent of SB 34, given that Senator Hill was the primary sponsorofthe legislation. See Commodore Home Sys., Inc. vy. Superior Court, 32 Cal. 3d 211, 219, 221(1982) (relying on an undated memoin an Assemblyman’s files to determine the legislative intent of Assembly Bill No. 738); see also Silver, 63 Cal. 2d at 846 (relying on affidavits of legislative employees who participated in drafting the statute). Importantly, SB 34 explicitly authorizes the sharing andtransferring of ALPRdata. The Legislature acknowledged that SB 34 “doesn’t prevent the authorized sharing of data, but if shared, must be justified and recorded.” See S. Rules Comm., Office of S. Floor Analyses, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34, at 6 (Sept. 3, 2015). Rather, the text of SB 34 itself requires ALPR operators to take measures that will “ensure that the collection, use, maintenance, Sharing, and dissemination of ALPR information is consistent with respect for individuals’ privacy andcivil liberties.” Cal. Civil Code § 1798.90.51(b)(1) (emphasis added). Likewise, SB 34 requires that ALPR operators and end-users, including public agencies, promulgate privacy and usage policies that specify “[t]he purposesof, processfor, andrestrictions on, the sale, sharing, or transfer ofALPR informationto other persons.” See Cal. Civ. Code §§ 1798.90.51(b)(2)(D); 1798.90.53(b)(2)(D); see also Cal. Civ. Code § 1798.90.52 (providing that operators may allow access on specified conditions). It would makelittle sense to require public agencies to promulgate privacy policies on the valid transfer of ALPRinformation “to other persons,”if that did not include CPRArequests. Indeed, the Cities and Counties’ interpretation of Civil Code Section 1798.90.55 is impossible to square with its plain languageorthe legislative intent that led to its adoption. Again, the Legislature designed SB 34 to promote transparency and accountability in the collection and maintenance of ALPR data by public agencies. The Senate recognized that SB 34 “is necessary to institute reasonable usage and privacy standards for the operation of ALPR systems, whichdonot exist for the majority of local agencies .. . [and] requires an opportunity for public input on the usage andstandards of 19 ALPRtechnologies... .” S. Rules Comm., Off. of S. Floor Analyses, 2015-2016 Reg. Sess., Rep. on S. Bill No. 34, at 6 (Sept. 3, 201 5). Such transparency and accountability requires that the public be allowed to meaningfully determine whether such data mining iS excessive or appropriate, including by testing the nature and extentofthe public agencies’ collection and the various abuses such data collection might enable.” Consequently, the Cities and Counties’ interpretation, which would deprive the public the ability to even see the extent of the data collected, would gut the protections of SB 34 and inoculate state agencies’ use of ALPR data against public oversight. That was not the Legislature’s intention. Cc. SB 34 Creates Private Rights OfAction That Would Require Public Agencies’ Disclosure OfALPR Data In addition, the other provisions enacted within SB 34 indicatethat the Legislature contemplated that public agencies might be required to disclose ALPR datain other contexts. For instance, thepri vate right of action for individuals harmed by improper data disclosure may require civil discovery of ALPR data. One cannot seriously contend that Civil Code Section 1798.90.55 was meantto immunizeall public agencies from the most basic civil discovery in those cases. If litigants were unable to receive the very evidence of how they have been harmed.the civil remedy the Legislature intended wouldbe illusory. Because that interpretation cannot have been the ° See Jeremy Gillula & Dave Maass, What You Can Learnfrom Oakland’s Raw ALPR Data, I:lectronic Frontier Foundation (Jan. 21, 2015) https://www.eff.org/deeplinks/2015/0 |/what-we-learned-oakland-raw-alpr-data (last visited June 27, 2016). 20 Legislature’s intent, the Cities and Counties’ interpretation of Civil Code Section 1798.90.55is incorrect. III. SB34 Is Meant To Allow Public Oversight Of ALPR Systems. Asdescribed supra, SB 34 was meant to enable the public to exercise its right to provide input and supervision over how government agenciescollect, manage, use, share, and protect ALPR data. See Assemb. Comm. on Transp. & Privacy & Appropriations, 2015-2016 Reg. Sess., 3d Reading Analysis of S. Bill No. 34, at 4 (Sept. 2, 2015) (recommending that SB 34 should be passed to provide “an opportunity for public input on the usage and standards of ALPR system[s] that are used by government entities” and to address the concern that “existing law is silent on how government agencies manage andprotect the ALPR data”); Assemb. Comm. on Consumer Protection & Privacy, 2015-2016 Reg.Sess., Rep. on S. Bill No. 34, at 6 (July 6, 2015) (“regulations must beputin place to keep the government from tracking our movements on a massive scale”). Further, there need not be any threatto privacy by allowing the disclosure of ALPR data pursuant to a CPRA request. Any data provided under the CPRA can be easily anonymized. For example, in CBS, Ine. v. Block, the Court held that confidential gun license data could be anonymized pursuant to a request under CRPA,and then released to the public, without infringing citizens’ protected privacy interests. 42 Cal, 3d 646, 655-56 (1986) (“If the... public [is] precluded from learning .. . there will be no method by which the public can ascertain whether the law is being properly applied or carried out in an even handed manner.”). The sameis certainly true of license plate data. 21 SB 34 wasenacted as the start of, and not conclusion to, the on-going discussion on howto bestestablish the standards and privacy requirementsrelated to ALPRsystems, the public needs to be informed about the consequences of such decisions. See Assemb. Comm.on Transp., 2015-2016 Reg. Sess., Rep. on S. Bill No. 34, at 3 (June 19, 2015) (“this bill also provides an opportunity for public input on the usage and standards of ALPR system that are used by governmententities, something the author contends most governmententities do not practice”). SB 34 was written with the goal of creating a mechanism for oversight over the use of ALPR technology and establishing basic privacy standardsfor its use. The Court should interpretit as such. CONCLUSION If the Cities and Counties’ interpretation of SB 34 prevails, Californians may well beleft asking “Quis custodiet ipsos custodes?” Forthe foregoing reasons, amicus curiae Senator Hill respectfully requests that the Court interpret SB 34 ina mannerthat does not prohibit the disclosure of ALPR data pursuant to CPRA. Dated: June 30. 2016 By: Tehoad ELtt, JASON D. RUSSEL RICHARD A. SCHWARZ Attorneys for Amicus Curiae Jerry Hill CERTIFICATE OF WORD COUNT I certify pursuant to California Rules of Court 8.204 and 8.504(d)that this Application For Leave To File Amicus Curiae Brief and amicuscuriae briefis proportionally spaced,has a typeface of 13 points or more, contains 6,150 words, excluding the cover, the tables, the signature block, andthis certificate, which is less than the total number of words permitted by the Rules of Court, based on the word count feature of the Microsoft Word word- processing programusedto prepare this brief. . i Dated: June 30, 2016 By: Pr\chaoSn RICHARD A. SCHWARTZ Attorney for Amicus Curiae Jerry Hill DECLARATION OF SENATOR JERRY HILL IN SUPPORT OF HIS APPLICATION FOR AN EXTENSION OF TIME I, Jerry Hill, declare and state as follows: [. 1am SenatorJerry Hill, representing California’s 13th District. | am the sponsorand the lead author of SB 34 (chapter 532 of the Statutes of 2015) (“SB 34”), I make this declaration based upon myfirsthand knowledgeofthe facts stated herein, and, if called to testify, could and would testify competently hereto. 2. The proposed amicus curiae brief filed herewith is intended to provide the Court with an understanding ofthe legislative history and intention behind SB 34,in part in response to amicus curiae brieffiled by the League of California Cities and the California State Association of Counties on April 28, 2016. I was unawareof the League of California Cities and the California State Association of Counties’ interpretation of SB 34 until mid-May 2016,after the Leagueof California Cities and the California State Association of Counties’ amicusbrief was filed. 3. On or around June 9, 2016, I reached out to counsel to seek assistance in preparing the amicus brief filed herewith. 4. I have not previously requested any extension oftime to file an amicusbrief. 5, Attached hereto as Exhibit | is a true and correct copy ofa letter I sent to Governor Edmund G. Brown Jr. on September 8, 2015, which does not appearto be readily accessible. I declare under the penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executedthis theAB day of June , California. 778403.04-LACSRO2A - MSW EXHIBIT 1 California State SenateTAPHTOD OSE STATE CAFITOL SACRAMENTS Ca USHA TELIDIGIGEGSI-G S SENATORFAR (SIGS BSt-A9: 9 JERRY HILL OS TRICT OFFICE THIRTEENTH SENATE DISTRICT1528 3. EL CAMING qEa_ SITE 305 SAN MATEO, OA Gagne “81 GEO) 210 8315 - Fax (650) 212.3R9r - yf WY PATIO oa GoreAA .FFEMATOR HbworwaTs ca coy m Seplentber 8, 2015 The Honorable Edmund G. Brown Ir. Governor, State of California State Capitol, First Floor Sacramento, CA 95814 RE: SB 34 (Hill) - Request for Signature Dear Governor Brown: Coane PRES PORSIMT US, CRUE RUSEIINS & FSOMOMIC CEVELOPMENT cnaiR APPROPRIATION© =NE AWG”, UTILITIES & DE MMUNTLAL ON FRYIRGRM TNTAL Lana64 BOVERNME YTAL ORGANIZATION, , I write lo respectfully request your signature on SB 34, which creates reasonable privacyand disclosure requirements forthe use of automatic license plate readers, a technology used widely by local law enfurcement and private businesses, suchas velnele repossession agencies, financial institutions, and parking companics. Despite the wehnology’s wide use, andexcept when used by the CHP and transportation agencies. automatic license plate readers are entirely unregulated, which,if lett so. poses substantial privacy and civil liberties concerns. In the absence of statutary protections, local law enforcement agencies have been slow to adopt their own rules for thetechnology. For example, in 2013 the American Civil Liherties Union (ACT.U)} surveyed 118 cities and counties inCalifornia and found that out ofthe 57 local agencics that have approved the use of the technology, only 8 provided anopportunity for public input and only 16 agencies have a publiclyavailable policy. Automatic license plate readers use a combination of high-speed cameras, software and criminal databases to rapidlycheck thousands of license plates a minute. The technologyis often mounted on law enforcement patrol cars, on stationarylight poles, or on private vehicles owned by businesses. Automatic license plate readers have become a usefull componentof modern policing and have provided efficiencies for businesses, bul the increased use of the technology has raisedconcerns about privacy and civil liberties, Whether or not a ‘hit’ occurs, all license plate scans are sentto fusion centers -large regional databases that agpregate data ftom various entities. The ACLL, estimates that ouly T percent of data actuallyresults in a “hit.” The other 99 percent ofdata has no relation to the commissionof a crime andyet is stored indefinitely.One private companyhas a database of over | billion License plate scans and another has one with over |. hillion. Anagencythai stores license plate data for northem California law enforcementagencies has over 100 million seans. The ageregated license plate data is pewerful information. Just like GPS, automatic license plate readers can inake il easyfor anvone, whether it’s the police, a private company, or an individual, to track and monitor the whereabouts of anyperson. While abuses or questionable uses have not been identified in our state, there are examples from around thecountry. In New York. police used automatic license plate readers to monitor residents altending a focal mosque and inVirginia, police used automatic license plate readers to track residents allending politival rallies, A Minneapolisnewspaper used automatic license plate reader data ta canstruct a map of where the Mayorhad yone during an cntire vear,A Massachusetis police officer used an automatic license plate readerto track a womanhe had met while on duty. When | started looking into this issue. | was curious what cau and cannot be done with the technology. I wanted to findwhere my wilt tad gone and with her permission | hired a private investigator, The private inyestipator put her licenseplate numberinto a database and sure cnough there was a picture of her vehicle. with her liccuse plate, her exact location,time and date, and a satellite view of where she was, If vou did that ana regular hasis people. and see where theyare going across the stale. you could detect patterns, track SB 34 provides protections to prevent antomatic license plate readers from infringing on Californians’ privacyand civilliberties. while balancing the levhinolugy as a legitimate crime fighting too), Specifically, SB 34 requires a public apencyconsidering, the use ol automatic license plate readers to provide an apportunity for public comment al a regularlyscheduicd public meeting ofits governing body, ‘The bill also prohibits public agencies fromselling the data collected bythe technology, because data collected with publicly funded technologythat is intended to help fight crime should not bemide available to benefit businesses using automatic license plate readers for cammercial purposes. SB 34 further requires public and private catilies (hal use automatic license plate readers to adopt a privacyand use policyand post it on their website. The policy must contain specific provisions, such as howthe technology will be used and howlong the data will be kept. The hill also requires operators - entities that store the data - to keep a record of wha aevessusthe data, when the dala is accessed, and for what purposes. SB 34 makes automatic license plate reader data subject toCalifornia’s Data Breach Law, consistent with the data breach requirements tor social security numbers and driver'slicense numbers. ‘This means that ifa database is hacked, people affected must be notified, Lastly, operators must protectthe data with reasonable security satepuards in arder to cusure the data’s integrity and confidentiality, and to protect thedata from unauthorized access or disclosure. Thave worked closely with our state’s law enforcement community to ensure that the requirements imposed bythe billprotect Californian’s privacy, but do not impact the utility of the technology as a crime fighting tool. SB 34 has receivedbipartisan support. has no opposition. and is supported by the California Civil Liberties Council, the Conference ofCalifornia Bar Associations. the Media Alliance, Small Rusiness California, and the BayArea Civil Liberties Coalition, If you have any questions or concerns reparding the legislation please contact me at (650) 619-6430 or have your staffcontact Patrick Welch in myoffice at (916) 651-4013. Sincerely, Jerry Hill, Senator, 13 " District CERTIFICATE OF SERVICE I, Brigitte Travaglini, do hereby affirm I am employedin the County of San Francisco, State of California. | am overthe age of 18 years and not a party to the within action. My business addressis 525 University Ave., Palo Alto, California 94301. I am employed in the office of a memberofthe barofthis court at whose direction the service was made. On June 30, 2016, I served the foregoing document: Application For Leave To File Amici Curiae Brief Of Senator Jerry Hill In Support OfPetitioners on the parties in this action by placing a true and correct copy of each documentthereof, enclosed in a sealed envelope on the persons below as follows: Court of Appealof California Second Appellate District Division Three Ronald ReaganState Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Los Angeles County Superior Court Stanley Mosk Courthouse Honorable James C. Chalfant 111 North Hill Street, Dept. 85 Los Angeles, CA 90012 Frederick Bennett Superior Court of Los Angeles County 111 North Hill Street, Room 546 Los Angeles, CA 90012 Heather L. Aubry, Deputy City Attorney 200 North Main Street 800 City Hall East Los Angeles, CA 90012 Attorneys for Real Parties in Interest: City of Los Angeles and Los Angeles Police Department Eric Brown Tomas A. Guterres Collins Collins Muir & Stewart, LLP 1100 El Centro Street South Pasadena, CA 91030 Attorneys for Real Parties in Interest: County of Los Angeles Martin J. Mayer James Touchstone Deborah Pernice-Knefel JONES & MAYER 377 No. Harbor Boulevard Fullerton, CA 92835 Attorneys for Amici Curiae: California State Sheriffs' Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association Michael G. Colantuono Michael R. Cobden COLANTUONO, HIGHSMITH & WAHTELY,PC 420 Sierra College Dr., Suite 140 Grass Valley, CA 95945-5091 Attorneys for Amid Curiae: League of Califqia Cities and California State Association of Counties Katie Townsend THE REPORIERS COMMITTEE FOR FREEDOM OF THEPRESS 1156 15"St. NW, Suite 1250 Washington, DC 20005 Attorneys for Amici Curiae: Reporters Committee for Freedom ofthe Press, American Society of News Editors, Association of Alternative Newmedia, California Newspaper Publishers Association, California Aware, The Center for Investigative Reporting, First Amendment Coalition, Los Angeles Times Communications LLC, The McClatchy Company, The National Press Club, National Press Photographers Association, Online News Association Alan Butler ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW, Suite 200 Washington, DC 20009 Attorneys for Amicus Curiae: Electronic Privacy Information Center James R. Wheaton Cherokee D.M. Melton FIRST AMENDMENTPROJECT 1736 Franklin Street, 9"" Floor Oakland, CA 94612 Attorneys for Amicus Curiae: Northern Chapter of Society of Professional Journalists Peter Bibring ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017-4401 Counsel for Petitioner American Civil Liberties Union Foundation of Southern California Jennifer Ann Lynch Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Counsel for Petitioner Electronic Frontier Foundation Iam readily familiar with the firm's practice for the daily collection and processing of correspondence for deliveries with the Federal Express delivery service and the fact that the correspondence would be deposited with Federal Express that same day in the ordinary course of business; on this date, the above-referenced document was placed for deposit at Palo Alto, California and placed for collection and delivery following ordinary business practices. (AS NOTED) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was By: Bin > ~ BrigitTravaglini executed on June 30, 2016.
